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The  Lawyer  in  Literature 


Introduction  xi 

read  that  book  two  or  three  times,  and  this  is  how  it  profited  me 
afterwards.  I  was  retained  in  a  very  serious  case  of  fraud.  I  studied 
the  party  on  the  other  side.  I  made  up  my  mind  that  if  ever  there 
was  a  miser  out  of  the  pages  in  Hterature,  that  was  the  man,  and 
that  Grandet  was  his  literary  father-in-law.  I  studied  Eugenie 
Crandet  again,  and  then  I  attacked  that  opponent.  It  was  an  eight 
years'  task.  But  the  image  of  Grandet  helped  me  to  hound  that  man 
so,  that  at  the  end  of  eight  years  there  was  not  anything  left  but  his 
hide.  The  greatest  admirer  of  the  work  I  did  is  that  man's  own 
lawyer;  but  he  will  not  give  me  credit  for  having  any  legal  acumen. 
He  maintains  that  I  knew  all  the  facts  beforehand.  Yet  the  truth 
of  the  matter  was  that  I  did  not;  I  drew  the  bill  before  I  had  the 
facts.  I  merely  judged  the  man's  character  from  what  I  had  read 
oi  Eugenie  Grandet.    That  experience  was  to  me  a  life  lesson. 

"Let  me  allude  also  to  another  case,  one  that  nearly  broke  me 
down  with  the  mental  and  physical  strain.  I  had  bought  every 
printed  trial  I  could  find  on  that  particular  subject.  I  had  a  year  to 
prepare  for  the  actual  trial  of  the  case.  There  were  very  eminent 
lawyers  on  the  other  side.  I  will  not  mention  names,  for  the  parties 
are  living.  But  I  did  not  receive  from  all  these  books  as  much  light 
as  I  did  from  a  certain  classical  novel,  one  that  characterized  exactly 
the  plaintiff's  object  and  put  that  party  in  the  Hme-light.  With  that 
aid  I  was  able  to  follow  all  the  ins  and  outs  of  his  maneuvers,  and 
finally  to  win  the  case.  It  was  a  work  of  fiction  that  guided  me  to 
a  right  solution  of  that  person's  character,  and  a  knowledge  of  his 
character  that  was  essential  to  victory. 

"Still  another  lesson  I  now  recall  which  I  learned  from  reading  — 
a  lesson  I  shall  never  forget.  It  related  to  a  gentleman  by  the  name 
of  Gil  Bias.  Gil  had  various  and  sundry  adventures,  and  among 
others  he  was  made  secretary  to  the  Archbishop  of  Toledo.  The 
Archbishop  said  to  him  one  day:  'Gil,  I  look  upon  you  as  a  very 
likely  young  man,  I  like  your  intelligence  and  acumen.  Now  I  am 
getting  old.  I  have  to  preach  once  a  month.  Make  it  your  duty 
to  let  me  know  when  you  see  any  failing  signs  in  my  mental  powers. 
I  will  trust  you  as  a  friend  to  tell  me  about  it.'  So  Gil  noted  the 
character  of  the  sermon  the  next  month.  Then  he  heard  the  en- 
suing sermon;  and  he  thought  the  Archbishop  showed  signs  of  age 
and  senility.  At  the  third  sermon  he  was  more  satisfied  of  this, 
and  the  fourth  was  shockingly  significant.  He  complimented  the 
Archbishop  on  the  first  sermon,  and  spoke  fairly  of  the  second, 
but  of  the  others  he  did  not.  The  Archbishop  asked,  'Now,  Gil, 
what  is  the  truth?'    Gil  said:   'Your  Eminence,  your  mental  powers 


xii  Introduction 

are  failing  rapidly.'  'Gil,'  responded  the  Archbishop,  'I  find  that 
I  am  mistaken  in  your  acumen.  The  treasurer  will  pay  you  and 
you  will  leave  the  house.'  I  have  never  forgotten  the  moral  of  that 
story.     Such  incidents  of  literature  add  to  your  knowledge." 

And  so  the  best  literature  —  drama  or  poetry,  phil- 
osophy or  fiction  —  must  always  be  an  arsenal  for  the 
lawyer.  That  is  why  I  offer  the  hope  that  this  volume 
may  whet  the  zest  of  all  devoted  members  of  our  pro- 
fession to  follow  the  example  of  our  author,  and  to  seek 
in  literature  its  manifold  message  to  the  lawyer. 


rri 


To  George  Stuart  Fullerton 

Professor  of  Philosophy  in  Columbia   University 

That  F  marches  just  before  G  in  the  familiar  pro- 
cession   of  the   alphabet   may   not   be   considered 
by   the  careless   crowd   a   matter   of  any   special 
moment,  yet  it  was  due  to  this  that  you  and  I 
rubbed  elbows  in  the  class  room  many  years  ago. 
You,  as  a  Philosopher,  may  resolve  the  problem 
of  cause  and  effect,  or  reason  high  of  Fix'd  fate, 
free  will,  foreknowledge  absolute;   I,  as  the  Plain 
Man  for  whom  you  have  written,  am  content  with 
the  assurance  that  the  passage  of  Time 
and  separation  in  Space  have  not 
lessened  the  friendship  that 
then  and  there  began. 

J.  M.  G. 


845239 


Preface 


The  papers  contained  in  this  volume  were 
written  in  the  leisure  intervals  of  professional 
work,  partly  for  my  own  amusement,  and  partly 
to  interest  members  of  my  profession  in  the  liter- 
ary aspect  of  the  law.  I  have  been  led  to  hope 
that  they  may  interest  a  wider  public  in  the  legal 
aspect  of  literature. 

The  Law  and  Lawyers  of  Dickens  was  read 
before  the  students  of  the  Law  School  of  the 
University  of  Pennsylvania  in  April,  1905;  The 
Law  and  Lawyers  of  Pickwick,  before  the  Law 
Club  of  Pittsburgh  in  May,  1908;  The  Law  and 
Lawyers  of  Scott,  before  the  Law  Association 
of  Philadelphia  in  March,  1906;  The  Law  and 
Lawyers  of  Balzac,  before  the  Sharswood  Law 
Club  of  Philadelphia  in  April,  1911,  and  after- 
wards before  the  Pennsylvania  Bar  Association 
at  its  annual  convention  in  June,  1911;  The 
Influence  of  Biblical  Texts  upon  English  Law, 
before  the  Societies  of  Phi  Beta  Kappa  and 
Sigma  Xi,  at  Philadelphia  in  June,  1910;  and 
all  of  these  were   published  in  the   University 


vi  Preface 

of  Pennsylvania  Law  Review.  The  paper  on 
the  Writings  of  Sir  Edward  Coke  appeared  in 
the  Yale  Law  Journal  of  May,  1909;  and  the 
address  on  the  Historical  Method  of  the  Study 
of  the  Law  was  delivered  to  the  students  of  the 
Law  School  of  Temple  College,  Philadelphia, 
in  February,  1902. 

The  republication  of  the  papers  that  have 
already  appeared  in  the  University  of  Pennsyl- 
vania Law  Review  and  in  the  Yale  Law  Journal 
is  with  the  approval  of  their  publishers,  whose 
courtesy  is  gratefully  acknowledged. 

JOHN  MARSHALL  GEST. 

City   Hall,  Philadelphia, 
Jamiary  1,  191S. 


Introduction 

By  John  H.  Wigmore  ^ 

The  compliment  is  an  agreeable  one,  to  be  allowed 
to  figure  as  the  Introducer  of  so  accomplished  a  legal 
scholar  as  the  Author  of  these  essays.  When  they  first 
saw  the  light  in  the  Pennsylvania  Law  Review,  I  was 
among  those  who  urged  that  they  receive  a  more  per- 
manent form  in  our  literature;  and  it  is  a  satisfaction 
to  see  this  proper  destiny  now  shaped  for  them. 

Who,  that  has  already  made  acquaintance  with  these 
characters  of  the  law  in  Dickens  and  the  rest,  will  not 
take  pleasure  in  comparing  notes  upon  them  with  Judge 
Gest?  Who,  that  has  his  favorites  and  his  aversions 
among  them,  will  not  be  interested  in  the  author's  new 
points  of  view,  his  fuller  survey,  his  keen  judgment, 
his  trenchant  wit,  his  generous  sympathies,  his  illuminat- 
ing comments? 

And  yet  a  main  use  of  the  book  ought  to  be  to  send 
those  readers  to  the  originals  who  have  never  been  there. 
Can  a  lawyer  —  I  mean  one  of  self-respect,  of  aspiration, 
of  devotion  to  his  art  and  science,  —  can  he  afford  to 
ignore  his  profession  as  it  is  glassed  in  the  literature  of 
life? 

Why  should  a  lawyer,  as  a  lawyer,  be  familiar  with 
literature,  particularly  the  literature  of  the  novelists? 

Well,  in  the  first  place,  there  are  episodes  of  fact  and 
types  of  character  in  professional  life  whose  descriptions 
by  famous  novelists  have  become  classical  in  literature, — 

^  Professor  of  Law  in  Northwestern  University. 


viii  Introduction 

Serjeant  Buzfuz  in  Pickwick  Papers;  the  Chancery  suit 
in  Bleak  House;  Effie  Dean's  trial  in  The  Heart  of  Mid- 
lothian; and  many  more.  With  these  every  lawyer 
must  be  acquainted,  —  not  merely  as  a  cultivated  man, 
but  as  one  bound  to  know  what  features  of  his  pro- 
fessional life  have  been  taken  up  into  general  thought. 
"The  first  thing  we  do,  let's  kill  all  the  lawyers!"  said 
Dick  the  Butcher  to  Jack  Cade.  If  you  do  not  know, 
from  your  Shakespeare  or  elsewhere,  that  this  sentiment 
was  once  —  and  more  than  once  —  a  rabid  popular 
demand,  then  you  cannot  gauge  the  possibilities  of  popu- 
lar thought  in  these  very  days  of  ours. 

Then,  again,  there  is  the  history  of  law,  —  that  is, 
the  scenes  and  movements  in  legal  annals  which  history 
has  made  famous.  To  know  the  spirit  of  those  times  — 
to  realize  the  operation  of  the  old  rules  now  gone  —  to 
feel  their  meaning  in  human  life  —  to  appreciate  the 
bitter  conflicts  and  their  lessons  for  today  —  this  deepest 
sense  of  reality  for  the  past  we  shall  get  only  in  the  novels, 
not  in  the  statute  books  or  the  reports  of  cases.  It  is 
one  thing  to  read  the  trial  of  Lord  George  Gordon  in 
good  old  Howell's  State  Trials,  but  it  is  a  dilTerent  thing 
to  read  about  the  very  same  events  in  Barnaby  Riidge. 
We  must  go  to  Bleak  House  to  learn  the  living  meaning 
of  Chancery's  delays;  to  Oliver  Twist  to  see  the  actual 
system  of  police  justice  in  London;  to  Pickwick  Papers 
to  appreciate  the  other  side  of  Baron  Parke's  technical 
rulings  reported  in  Meeson  &  Welsby's  volumes,  —  those 
sixteen  volumes  of  which  Erie  said,  "It  is  a  lucky  thing 
that  there  was  not  a  seventeenth  volume,  —  for,  if  there 
had  been,  the  common  law  itself  would  have  disappeared 
altogether  amidst  the  jeers  of  mankind."  Read  Lady 
Lisle's  trial  by  the  savage  Jeffreys,  in  Howell's  State 
Trials,  and  then  Conan  Doyle's  account  of  it  in  Micah 
Clarke;    read   some   book  on   the  early  real   property 


Introduction  ix 

statutes  of  New  York,  and  then  Fenimore  Cooper's 
portrayal  of  them  in  Satanstoe  and  Chainbearer;  read 
the  chill  technical  reports  of  bankruptcy  proceedings 
in  the  Federal  Reporter,  and  then  Balzac's  story  of  the 
downfall  of  Cesar  Birotteau.  The  living  side  of  the  rules 
of  law  is  often  to  be  found  in  fiction  alone. 

But  there  is  a  further  service,  and  a  higher  one,  to 
be  rendered  to  the  lawyer  by  literature.  For  literature, 
and  especially  the  novel,  is  a  catalogue  of  life's  charac- 
ters. And  human  nature  is  what  the  lawyer  must  know. 
He  must  deal  understandingly  with  its  types,  its  motives. 
These  he  cannot  find  —  all  of  them  — close  around  him ; 
life  is  not  long  enough,  the  variety  is  not  broad  enough 
for  him  to  learn  them  by  personal  experience  before 
he  needs  to  use  them.  For  this  learning,  then,  he  must 
go  to  fiction,  which  is  the  gallery  of  life's  portraits.  When 
Balzac's  great  design  dawned  on  him,  to  form  a  com- 
plete series  of  characters  and  motives,  he  conceived 
his  novels  as  conveying  just  such  learning.  He  even 
enumerated  the  total  number  of  characters.  His  task 
was,  he  says:^' 

"To  paint  the  three  or  four  thousand  saHent  figures  of  an  epoch  — 
for  that  is  about  the  number  of  types  presented  by  the  generation 
of  which  this  human  comedy  is  the  contemporary  and  the  exponent, 
this  number  of  figures,  of  characters,  this  multitude  of  portraits, 
needed  frames.  Out  of  this  necessarily  grew  the  classification  of 
my  work  into  Scenes.  Under  these  heads  I  have  classed  all  those 
studies  of  manners  and  morals  which  form  the  general  history  of 
Society.  .  .  If  the  meaning  of  my  work  is  understood,  my  readers 
will  see  that  I  give  to  the  recurring  events  of  daily  life  (secret  or 
manifest),  and  to  actions  of  individuals,  with  their  hidden  springs 
and  motives,  as  much  importance  as  the  historian  bestows  on  the 
public  life  of  a  nation." 


^  Preface  of   1848  —  "one  of  the  world's  great  prefaces,"  Brune- 
tiere  calls  it. 


X  Introduction 

In  this  view,  the  work  of  the  noveUst  is  to  provide 
a  museum  of  human  characters,  traits  and  motives  — 
just  as  we  might  go  to  a  museum  of  zoology  to  observe 
an  animal  which  we  desired  to  understand  but  had  never 
yet  seen  alive;    this  was  Balzac's  idea: 

"There  have  always  been,  and  always  will  be,  social  species,  just 
as  there  are  zoological  species.  If  Buffon  achieved  a  great  work 
when  he  put  together  in  one  book  the  whole  scheme  of  zoology,  is 
there  not  a  work  of  the  same  kind  to  be  done  for  Society?  .  .  .  There 
are  as  many  different  men  as  there  are  species  in  zoology.  The  differ- 
ences between  a  soldier,  a  workman,  a  merchant,  a  sailor,  a  poet, 
a  beggar,  a  priest,  though  more  difficult  to  decipher,  are  at  least  as 
marked  as  those  which  separate  the  wolf,  the  lion,  the  ass,  the  crow, 
the  shark,  the  seal,  the  lamb,  and  so  on." 

And  so  the  lawyer,  whose  highest  problems  call  for 
a  perfect  understanding  of  human  character  and  a  skill- 
ful use  of  this  knowledge,  must  ever  expect  to  seek  in 
fiction  as  in  an  enclyclopedia  that  learning  which  he 
cannot  hope  to  compass  in  his  own  limited  experience 
of  the  humans  whom  chance  enables  him  to  observe  at 
close  range. 

This  learning  has  been  sought,  possessed,  and  valued 
by  many  great  advocates.  Perhaps  they  have  seldom 
openly  inculcated  its  value.  But  I  know  of  one  singu- 
larly direct  exposition  of  this  theme,  which  must  here 
be  quoted :  ^ 

"Read  the  literature  'f  human  nature.  .  .  .  To  my  mind  Balzac 
is  the  greatest  judge  of  human  nature,  after  Shakespeare.  I  think 
I  learned  more  of  human  nature  (outside  of  my  own  experience) 
from  Balzac  than  I  have  from  any  other  author  except  Shakespeare. 
I  recall  especially  Eugenie  Grandet,  the  history  of  a  miser.     I  have 

1  Address  of  Frank  J.  Loesch,  Esq.,  President  of  the  Chicago  Bar 
Association,  in  1905,  at  Northwestern  University  Law  School; 
printed  in  the  Illinois  Law  Review  (1907),  Vol  I,  p.  455;  entitled, 
"The  Acquisition  and  Retention  of  a  Clientage." 


The 
Lawyer  in  Literature 


BY 

JOHN  MARSHALL  GEST 

Jtidge   of  the  Orphans'  Court 
Philadelphia,   Penn. 


BOSTON 

THE   BOSTON   BOOK   COMPANY 

1913 


Copyright,  1913 
By  JOHN  MARSHALL  GEST 


The  River  dale  Press,  BrookUne,  Mass..    U.S.A. 


Contents 


I 

Page 

The  Law  and  Lawyers  of  Charles  Dickens 1 

II 

The  Law  and  Lawyers  of  Pickwick 33 

III 

The  Law  and  Lawyers  of  Sir  Walter  Scott 65 

IV 
The  Law  and  Lawyers  of  Honore  de  Balzac   113 

V 

The  Writings  of  Sir  Edward  Coke   155 

VI 

The  Influence  of  Bibical  Texts  Upon  English  Law  .    197 

VII 

The  Historical  Method  of  the  Study  of  the  Law, 
illustrated  by  the  Master's  Liability  for  his 
Servant's  Tort     225 


I 

The  Law  and  Lawyers  of 
Charles  Dickens 


The  Lawyer  in  Literature 


The  Law  and  Lawyers  of 
Charles  Dickens^ 

In  selecting  a  subject  for  this  address  I  found  myself 
somewhat  in  the  predicament  of  Solomon  John  Peterkin, 
who,  having  been  selected  by  the  family  to  write  a  book, 
and  having  surrounded  himself  with  a  supply  of  ink, 
pens,  and  paper,  was  puzzled  to  know  what  to  write 
about.  For  one  who  is  honored  with  an  invitation  to 
address  the  students  of  a  law  school  is  expected,  I  sup- 
pose, to  speak  upon  a  subject  having  at  least  some  nomi- 
nal connection  with  the  law,  while,  if  he  attempts  the 
discussion  of  a  technical  question,  he  exposes  himself  to 
the  danger  of  having  his  theories  dissected  or  his  con- 
clusions disproved  in  the  class  rooms  on  the  morrow. 
Then  it  occurred  to  me  that,  perhaps,  in  your  devotion  to 
Bracton,  the  Year  Books,  and  Coke  on  Littleton,  you 
might  be  neglecting  some  of  the  more  modern  writers, 
who  have  been  bold  enough  to  borrow  from  Justinian  the 
title  of  Novels  for  their  books,  which  looks  very  much 
like  what  is  called  Unfair  Trade  Competition.  So,  these 
literary  pirates  sometimes  call  their  productions  Fic- 
tion, though  everyone  knows  that  the  real,  genuine, 
original  Fictions  are  the  fictions  of  law,  which  Jeremy 

'  An  address  read  before  the  students  of  the  Law  School  of  the 
University  of  Pennsylvania  on  April  5,  1905. 


4  The  Law  and  Lawyers 

Bentham  says  are  the  most  pernicious  and  basest  sort 
of  lying,  while  Blackstone  says  that,  though  at  first 
they  may  startle  the  student,  he  will  find  them,  on 
further  consideration,  to  be  highly  beneficial  and  useful. 

Now,  you  may  learn  a  great  deal  of  law  in  a  very 
agreeable  way  by  reading  novels.  Thus,  in  Ten  Thousand 
a  Year,  you  find  the  old  action  of  ejectment,  with  all  its 
fictions  and  prolixities,  fully  described ;  the  plot  of  Felix 
Holt  turns  upon  a  base  fee,  and  I  believe  George  Eliot 
obtained  professional  advice  upon  her  book  before  it  was 
published.  In  Cesar  Birotteau,  Balzac  explains  in  detail 
the  French  law  of  bankruptcy ;  while  in  other  books, 
forged  wills  and  murder  trials  of  the  most  thrilling  sort 
abound.  Sometimes  these  legal  novelists  are  not  very 
accurate  in  their  law,  but  that  should  only  serve  to  stimu- 
late the  reader's  criticism.  Shakespeare's  plays,  as  we 
all  know,  are  crammed  with  legal  allusions;  and  Sir 
Walter  Scott,  who  was  a  lawyer  by  profession,  and  a 
well-read  lawyer  too,  made  good  use  of  his  legal  learning. 
Nothing  of  the  kind  is  more  amusing  than  his  account 
of  the  great  case  of  Peebles  v.  Planestanes  in  Redgauntlet 
while  Anne  of  Geier stein  is  worth  reading  for  the  sake  of 
the  Vehmgerichl. 

But  today  we  may  be  able  to  find  enough  in  Dickens 
to  occupy  the  time.  Indeed,  it  makes  little  difference 
what  subject  is  selected,  provided  we  don't  stick  too 
closely  to  it.  As  Mrs.  Squeers  used  to  say  to  the  boys 
when  they  labored  under  extraordinary  ill  usage,  "It 
will  be  all  the  same  a  hundred  years  hence." 

I  shall  neither  sketch  the  life  of  Dickens,  nor  attempt 
any  criticism  of  his  work;  but  it  is  well  to  recall  a  few 
important  facts  and  dates.  He  was  born  February  7, 
1812;  he  died  June  9,  1870.  He  began  writing  his 
Sketches  by  Boz  in  1835,  at  the  age  of  twenty-three,  and 
until    the    day   of    his   death,    thirty-five    years    after. 


Of  Charles  Dickens  5 

delighted  and  astonished  the  readers  of  two  continents 
with  thirteen  elaborate  works  and  numerous  shorter 
stories  and  sketches,  introducing  over  five  hundred  char- 
acters, many  of  whom  are,  indeed,  Household  Words. 

At  the  age  of  ten  he  was  employed  in  a  factory,  pasting 
labels  on  blacking  pots  at  six  shillings  a  week,  under- 
going experiences  which  would  have  crushed  a  weaker 
spirit,  as  he  said  in  later  years,  with  "no  advice,  no 
counsel,  no  encouragement,  no  consolation,  no  support 
from  anyone  that  I  can  call  to  mind,  so  help  me  God." 
His  father  was  a  prisoner  for  debt  in  the  Marshalsea 
prison,  and  Dickens  spent  his  Sundays  there,  getting 
the  impressions  which  he  reproduced  so  vividly  in  Little 
Dorrit.  At  fifteen  he  entered  the  ofifice  of  one  Molloy, 
an  attorney,  in  New  Square,  Lincoln's  Inn,  and,  later, 
the  office  of  Ellis  &  Blackmore,  attorneys,  of  Gray's  Inn. 
Here  he  remained  until  November,  1828,  receiving  a 
salary  of  fifteen  shillings  a  week.  His  experience,  though 
short,  must  have  been  crowded.  He  saw  the  seamy 
side  of  the  law,  the  Fleet  Prison,  Newgate,  and  the 
Marshalsea. 

He  doubtless  slipped  many  a  time  into  the  Old  Bailey 
and  saw  there  tried  many  an  Artful  Dodger;  that  Old 
Bailey  of  which  Lord  Brampton  says,  in  his  Remi- 
niscences, "Its  associations  were  enough  to  strike  a  chill 
of  horror  into  you.  It  was  the  very  cesspool  for  the  off- 
scourings of  humanity."  And  Dickens  had  a  wonderful 
memory  for  all  these  things.  He  used  to  say  that  he 
remembered  his  old  home  at  Portsmouth,  from  which 
he  was  taken  when  two  years  old.  This  must  be  true, 
because  he  said  it,  and  he  ought  to  know.  Like  a  good 
Churchman,  Credo  quia  impossibile.  At  all  events,  he 
remembered  everything  worth  remembering,  and  a  great 
deal  one  would  think  worth  forgetting,  and  everything  he 
saw  and  heard,  reappeared,  sometimes  like  a  photograph, 


6  The  Law  and  Lawyers 

sometimes  like  a  caricature,  in  his  books.  Then  he 
studied  shorthand,  as  he  tells  us  in  David  Copperfield, 
and  reported  in  the  Lord  Chancellor's  Court;  then  for 
the  newspapers;  then  for  two  years  he  sat  in  Doctors' 
Commons;  then  at  the  age  of  nineteen  entered  the 
"gallery,"  where  he  stayed  for  four  years  more,  with 
quick  eye  and  ears  and  nimble  fingers,  answering  in  a 
sense  Browning's  question,  "What  hand  and  brain  went 
ever  paired?" 

Such  was  his  education  and  preparation  for  his  career, 
which  then  began  with  his  Sketches  by  Boz,  some  of 
which  are  as  good  as  anything  he  wrote  in  later  life; 
and  in  1836,  at  the  age  of  twenty-four,  Pickwick  made  him 
immortal,  and  has  kept  the  whole  world  on  a  broad  grin 
ever  since. 

I  have  said  that  no  criticism  of  Dickens  would  be  here 
attempted,  but  one  thing  must  be  said,  because  every- 
body else  has  said  it,  and  it  is  really  true  in  speaking 
of  the  law  and  lawyers  of  Dickens,  that  Dickens  saw  too 
keenly  the  humorous  side  of  life  to  portray  it  as  an 
artist;  he  was  a  caricaturist.  Life  is  mirrored  in  his 
pages,  but  the  mirror  was  convex  or  warped,  and  he 
went  up  and  down  the  world,  holding  it  before  every- 
body and  everything.  He  held  it  before  his  own  father, 
and  the  amused  world  beheld  the  foolish  figure  of  Mr. 
Micawber;  he  held  it  before  his  mother,  and  the  image 
appeared  of  Mrs.  Nickleby;  his  friend,  Leigh  Hunt, 
became  Harold  Skimpole;  Landor  was  changed  to  Boy- 
thorn;  a  family  friend  appeared  as  Miss  Mowcher,  So, 
with  Dickens's  reproduction  of  manners  and  institu- 
tions. He  was  sentimental  and  emotional,  but  his  senti- 
ment too  often  becomes  mawkish ;  his  pathos  is  strained 
and  artificial;  the  best  of  his  writings  are  marred  too 
often  by  blank  verse,  while  the  plots  of  his  stories  are 
frequently  awkward,  involved,  and  unnatural. 


Of  Charles  Dickens  7 

He  was,  as  I  said,  sentimental  and  emotional ;  he  was 
sympathetic  also.  He  saw  and  appreciated  the  evils  of 
society  as  they  existed  in  his  day,  but  he  lacked  the  con- 
structive faculty  of  suggesting  practical  reforms.  His 
ability  consisted  in  exciting  compassion  for  the  poor  and 
oppressed,  scorn  and  contempt  for  the  oppressor,  and 
derision  for  the  laws  which,  at  the  time  he  wrote,  favored 
poverty  and  oppression,  and  were  the  worn-out  heritage 
of  an  earlier  stage  of  society. 

I  repeat  that  in  reading  Dickens'sdescription  of  the  law 
and  lawyers  we  must  bear  in  mind  that,  first  and  last,  his 
aim  was  to  ridicule,  satirize  and  caricature  all  that  he 
disliked  and  despised,  and  he  saw  much  in  the  law  and 
lawyers  of  England  to  dislike  and  despise.  He  was  not, 
of  course,  an  educated  lawyer.  I  doubt  very  much  if 
he  ever  read  any  law  at  all.  He  was  not  a  reader,  like 
Uriah  Heep,  whom  he  found  "going  through  Tidd'sPrac- 
tice,''  a  great,  fat  book,  with  his  lank  forefinger  follow- 
ing the  lines  and  making  tracks  along  the  page  like  a 
snail.  Dickens's  knowledge  was  not  derived  from  the 
printed  page,  but  from  what  he  saw  and  heard.  He 
was  never  called  to  the  Bar,  though  I  believe  he  ate  his 
dinners  in  the  Middle  Temple.  In  the  guise  of  the  Un- 
commercial Traveller  Dickens  says:  "I  was  uncommer- 
cially  preparing  for  the  Bar,  which  is  done,  as  everybody 
knows,  by  having  a  frayed  old  gown  put  on,  and,  so 
decorated,  bolting  a  bad  dinner  in  a  party  of  four, 
whereof  each  individual  mistrusts  the  other  three." 

Dickens's  practical  experience  of  the  law  was  decidedly 
unpleasant.  In  1844  Vice-Chancellor  Knight-Bruce 
granted  him  an  injunction  against  some  literary  pirates 
who  published  imitations  of  Christmas  Carol  and  Chuzzle- 
wit.  Although  successful,  he  had  to  pay  the  costs,  a 
boomerang  which  he  might  have  considered  very  funny 
had   it  happened   to  another.     When  another  case  of 


8  The  Law  and  Lawyers 

piracy  occurred  he  wrote  to  his  counsel,  Talfourd:  "It 
is  better  to  suffer  a  great  wrong  than  to  have  recourse 
to  the  much  greater  wrong  of  the  law.  I  shall  not  easily 
forget  the  expense  and  anxiety  and  horrible  injustice  of 
the  Carol  case,  wherein,  in  asserting  the  plainest  right 
on  earth,  I  was  really  treated  as  if  I  were  the  robber 
instead  of  the  robbed."  It  was,  doubtless,  his  own 
sentiments  which  he  expressed  in  the  Battle  of  Life, 
which  he  wrote  soon  after. 

"Nothing  serious  in  life!"  said  Mr.  Snitchey,  of  the 
law-firm  of  Snitchey  &  Craggs,  as  he  peeped  into  his 
blue  bag.     "What  do  you  call  law?" 

"A  joke,"  replied  the  doctor. 

"Did  you  ever  go  to  law?"  asked  Mr.  Snitchey,  look- 
ing out  of  the  blue  bag. 

"Never,"  returned  the  doctor. 

"If  you  ever  do,"  said  Mr.  Snitchey,  "perhaps  you'll 
alter  that  opinion." 

Snitchey  naturally  took  a  professional  view  of  the  law. 

"Take  this  smiling  country  as  it  stands.  Think  of 
the  laws  appertaining  to  real  property;  to  the  bequest 
and  devise  of  real  property ;  to  the  mortgage  and  redemp- 
tion of  real  property;  to  leasehold,  freehold,  and  copy- 
hold estate;  think,"  said  Mr.  Snitchey,  with  such  great 
emotion  that  he  actually  smacked  his  lips,  ^'of  the  com- 
plicated laws  relating  to  title  and  proof  of  title,  with  all 
the  contradictory  precedents  and  numerous  Acts  of 
Parliament  connected  with  them;  think  of  the  infinite 
number  of  ingenious  and  interminable  Chancery  suits 
to  which  this  pleasant  prospect  may  give  rise,  and 
acknowledge  that  there  is  a  green  spot  in  the  scheme 
about  us!" 

"The  one  great  principle  of  the  English  law,"  says 
Dickens  in  Bleak  House,  "is  to  make  business  for  itself. 
There   is  no   other   principle   distinctly,    certainly,    and 


Of  Charles  Dickens  9 

consistently  maintained  through  all  its  narrow  turnings. 
Viewed  by  this  light,  it  becomes  a  coherent  scheme,  and 
not  the  monstrous  maze  the  laity  are  apt  to  think  it. 
Let  them  but  once  clearly  perceive  that  its  grand  prin- 
ciple is  to  make  business  for  itself,  at  their  expense,  and 
surely  they  will  cease  to  grumble." 

As  Dickens  viewed  the  law  with  profound  contempt, 
so  he  regarded  lawyers  with  scant  favor.  Most  of  the 
lawyers  in  his  books  are  shysters,  as  we  would  call 
them,  or  narrow,  mean,  ignorant  pettifoggers.  His 
books  are  crowded  with  familiar  specimens.  We  pass 
by  the  celebrated  firm  of  Dodson  &  Fogg  with  sincere 
regret,  for  the  present;  but  there  are  others.  Here  is 
Stryver,  "the  favourite  at  the  Old  Bailey  and  eke  at  the 
Sessions,"  by  whose  efforts  Damay  was  acquitted: 
Stryver,  "stout,  loud,  red,  bluff,  and  free  from  any 
drawback  of  delicacy,  a  glib  man,  and  an  unscrupulous 
and  a  ready  and  a  bold,"  and  Sydney  Carton,  his  jackal, 
idlest  and  most  unpromising  of  men,  who,  at  the  last, 
by  the  transforming  touch  of  the  novelist,  is  "exempted 
out  of  the  number  of  the  rascabilitie  of  the  popular." 

Of  most  of  such  men  the  old  verses  are  true: 

"For  fees  to  any  form  they  mould  a  cause, 
The  worst  has  merits  and  the  best  has  flaws; 
Five  guineas  make  a  criminal  today, 
And  ten  tomorrow  wipe  the  stain  away." 

Here  is  Jaggers,  the  criminal  lawyer  of  Great  Expec- 
tations. With  Pip  we  may  check  off  in  detail  "his  large 
head,  his  dark  complexion,  his  deep-set  eyes,  his  bushy 
black  eyebrows,  his  large  watch  chain,  his  strong  black 
dots  of  beard  and  whisker,  and  even  the  smell  of  scented 
soap  on  his  great  hand."  Mr.  Jaggers's  office  was  a 
most  dismal  place,  and  there  were  some  odd  objects 


10  The  Law  and  Lawyers 

that  you  would  not  expect  to  see,  such  as  an  old  rusty 
pistol,  a  sword,  strange-looking  boxes,  mementos  of 
clients  dead  and  gone,  and  on  a  shelf  two  dreadful  casts 
of  faces  peculiarly  swollen  and  twitchy  about  the  nose. 
"These  are  two  celebrated  ones,"  as  Wemmick,  Jaggers's 
satellite,  explained  to  Pip.  "Famous  clients  of  ours 
that  got  us  a  world  of  credit.  This  cast  was  made  in 
Newgate,  directly  after  he  was  taken  down.  You  had  a 
particular  fancy  for  me,  hadn't  you,  Old  Artful?" 
Jaggers  himself  sat  in  a  deadly  black  horsehair  chair, 
with  the  plaster  casts  perched  above  him,  and  treated 
his  clients  like  criminals,  as  in  fact  they  were. 

Here  is  Mr.  Tulkinghorn,  the  sly,  unscrupulous  old 
family  solicitor,  "the  steward  of  the  legal  mysteries,  the 
butler  of  the  legal  cellar  of  the  Dedlocks,  surrounded  by  a 
halo  of  family  confidences,  of  which  he  is  the  silent  deposi- 
tary." He  was  of  the  old  school,  and  wore  knee-breeches, 
tied  with  ribbons,  and  gaiters.  He  was  a  hard-grained 
man,  close,  dry,  silent,  with  a  priceless  bin  of  port  in  some 
artful  cellar  under  his  chambers  in  Lincoln's  Inn  Fields, 
where  he  sits  alone  after  dinner  to  enjoy  his  wine,  with  the 
Allegory  in  a  Roman  helmet  sprawling  on  the  painted 
ceiling  above  him,  while  around  about  are  old-fashioned 
mahogany  and  horsehair  chairs,  and  obsolete  tables  with 
spindle  legs. 

There  are  plenty  of  lawyers  in  Bleak  House  besides 
Tulkinghorn.  Conversation  Kenge,  of  Kenge  &  Carboy, 
Lincoln's  Inn,  was  a  portly,  important  looking  gentleman, 
dressed  all  in  black,  with  a  white  cravat,  large  gold  watch- 
seals,  a  pair  of  gold  eyeglasses,  and  a  large  seal  ring  upon 
his  little  finger.  Mr.  Guppy  was  employed  in  Kenge  & 
Carboy's  office,  where  he  learned  enough  to  file  his  decla- 
ration of  love  to  Esther  "without  prejudice." 

Mr.  Vholes  was  another  solicitor  in  Jarndyce  v.  Jarn- 
dyce.    He  was  a  sallow  man,  with  pinched  lips,  that  looked 


Of  Charles  Dickens  11 

as  if  they  were  cold,  a  red  eruption  upon  his  face,  tall  and 
thin,  high  shouldered  and  stooping,  always  dressed  in  black, 
black  gloved,  and  buttoned  to  the  chin.  Mr.  Vholes  used 
to  say  that  when  a  client  of  his  laid  down  a  principle  that 
was  not  of  an  immoral  nature  it  devolved  upon  him  to 
carry  it  out ;  the  ethical  force  of  which  was  rather  marred 
by  his  explanation  that  by  immoral  he  meant  illegal. 

But,  of  all  Dickens's  disreputable  lawyers,  Sampson 
Brass,  Daniel  Quilp's  attorney,  was  probably  the  lowest. 
He  was  a  tall,  meagre  man,  with  a  nose  like  a  wen,  a  pro- 
truding forehead,  retreating  eyes,  and  hair  of  a  deep  red, 
with  a  cringing  manner  and  a  very  harsh  voice  —  his  face 
being,  indeed,  "one  of  nature's  beacons,  warning  off  those 
who  navigated  the  shoals  and  breakers  of  the  World,  or 
of  that  dangerous  strait,  the  Law."  But,  as  he  was  wont 
to  boast,  he  was  a  gentleman  —  by  Act  of  Parliment.  "I 
maintain  the  title  by  the  annual  payment  of  twelve 
pounds  sterling  for  a  certificate.  I  am  not  one  of  your 
writers  of  books,  or  painters  of  pictures,  who  assume  a 
station  that  the  laws  of  their  country  don't  recognize. 
If  any  man  brings  an  action  against  me  he  must  describe 
me  as  a  gentleman,  or  his  action  is  null  and  void."  Well 
might  the  words  of  Sir  Thomas  Smith  apply:  "Gentlemen 
bee  made  good  cheape  in  England." 

But  even  an  Act  of  Parliament  itself  could  not,  for  sev- 
eral reasons,  have  made  a  gentleman  of  Sampson's  sister 
Sally.  Lord  Coke  lays  it  down  that  women  cannot  be 
attorneys,  otherwise,  no  doubt.  Miss  Sally  Brass  would 
have  taken  out  her  certificate.  "This  Amazon  at  law  was 
a  lady  of  thirty-five  or  thereabouts,  of  a  gaunt  and  bony 
figure  and  a  resolute  bearing,  which,  if  it  repressed  the 
softer  emotions  of  love  and  kept  admirers  at  a  distance, 
certainly  inspired  a  feeling  akin  to  awe  in  the  breasts  of 
those  male  strangers  who  had  the  happiness  to  approach 
her."     In  face  she  bore  a  striking  resemblance  to  her 


12  The  Law  and  Lawyers 

brother  Sampson.  "In  complexion  she  was  sallow,  rather 
a  dirty  sallow,  but  this  hue  was  agreeably  relieved  by  the 
healthy  glow  which  mantled  in  the  extreme  tip  of  her 
laughing  nose.  Her  voice  was  exceedingly  impressive, 
deep  and  rich  in  quality,  and,  once  heard,  not  easily  for- 
gotten. Her  usual  dress  was  a  green  gown,  in  color  not 
unlike  the  curtain  of  the  office  window,  made  tight  to  the 
figure,  while  her  head  was  invariably  ornamented  with 
a  brown  gauze  scarf,  like  the  wing  of  the  fabled  vampire. 
She  was  born  and  bred  to  law,  and  even  in  childhood  was 
noted  for  her  exquisite  manner  of  putting  an  execution 
into  her  doll's  house  and  taking  an  exact  inventory  of  the 
chairs  and  tables."  When  Shakespeare  protrayed  his 
feminine  lawyer  he  gave  us  Portia;  when  Dickens  tried 
his  hand  he  gave  us  Sally  Brass.  The  girl  graduates  of 
the  present  time,  the  women  moulded  to  the  fuller  day, 
with  their  "star  sisters  answeringunder  crescent  brows," 
have  thus  their  choice  of  ideals. 

When  Dickens  began  first  to  observe,  and  then  to  write 
about  what  he  saw,  it  was  nominally  the  nineteenth  cen- 
tury but,  so  far  as  the  law  was  concerned,  the  eighteenth 
century  lasted  until  the  Reform  Act  of  1832.  The  laws,  a 
century  ago,  were  almost  mediaeval,  and  the  trouble  was 
that  judges  and  lawyers,  for  the  most  part,  were  satis- 
fied with  them.  Not  all,  by  any  means.  Here  and  there 
a  voice  cried  in  the  wilderness,  and  men  like  Bentham 
marched  around  Jericho,  blowing  their  rams'  horns.  But 
it  was  not  the  first  blast,  nor  the  second,  that  levelled  the 
walls.  Reform  came  very  slowly  indeed,  until  the  middle 
of  the  century;  then  the  walls  fell  with  a  crash.  There 
were  not  a  few  defects  in  the  law  against  which  Dickens 
shot  his  arrows  of  abuse  and  ridicule,  and  some  of  these 
we  shall  now  recall. 

In  the  beginning  of  the  last  century  most  crimes  were 
felonies,  and  most  felonies  were  capital.    Over  two  hundred 


Of  Charles  Dickens  13 

offenses  were  punishable  with  death,  especially  those 
which  involved  a  confusion  of  those  great  pronouns  meum 
and  tuum,  as  Lord  Coke  calls  them.  Under  the  Shop- 
lifting Act,  for  example,  to  which  Dickens  refers  in  Bar- 
naby  Rtidge,  stealing  in  a  shop  to  the  value  of  five  shillings 
was  a  capital  offense.  Stealing  in  a  dwelling-house  to  the 
value  of  forty  shillings  was  likewise  capital,  and  the  endea- 
vors of  men  like  Erskine  and  Romilly  to  mitigate  the  sever- 
ity of  such  laws  were  frustrated  by  Lord  Eldon.  That 
great  but  narrow-minded  man  might  have  profited  by 
these  words  of  Lord  Coke  (not  generally  considered  as  a 
leader  of  reform) ,  who  said  in  the  Epilogue  to  the  Third  In- 
stitute: "What  a  lamentable  case  it  is  to  see  so  many  Chris- 
tian men  and  women  strangled  on  that  cursed  tree  of  the 
gallows,  insomuch  as  if,  in  a  large  field,  a  man  might  see 
together  all  the  Christians,  that  but  in  one  year  through- 
out England,  come  to  that  untimely  and  ignominious 
death,  if  there  were  any  spark  of  grace  or  charity  in  him,  it 
would  make  his  heart  to  bleed  for  pity  and  compassion." 

When  Dickens  began  his  career,  things  were  about  as 
bad  as  they  were  in  the  latter  part  of  the  eighteenth  cen- 
tury, the  date  of  the  Tale  of  Two  Cities.  "The  forger 
was  put  to  death ;  the  utterer  of  a  bad  note  was  put  to 
death ;  the  unlawful  opener  of  a  letter  was  put  to  death ; 
the  coiner  of  a  bad  shilling  was  put  to  death.  Not  that 
it  did  the  least  good  in  the  way  of  prevention,  but  it 
cleared  off,  as  to  this  world,  the  trouble  of  each  particular 
case,  and  left  nothing  else  connected  with  it  to  be  looked 
after."  And  then  the  heads  of  the  victims  used  to  be 
hung  up  at  Temple  Bar,  as  Judas  Maccabeus  hung 
Nicanor's  head  upon  the  tower  as  an  evident  and  manifest 
sign  unto  all. 

In  one  of  the  early  Sketches  by  Boz  Dickens  describes 
a  visit  to  Newgate.  In  the  prison  chapel  was  the  con- 
demned pew,  in  which  the  wretches  who  were  condemned 


14  The  Law  and  Lawyers 

to  death  listened  to  their  own  funeral  sermon  on  the 
Sunday  before  their  execution;  while  at  one  time,  not 
then  far  distant,  their  coffins,  with  a  grimly  terrific  humor, 
were  placed  in  the  pew  beside  them.  "Let  us  hope," 
said  he,  "that  the  increase  of  civilization  and  humanity, 
which  abolished  this  frightful  and  degrading  custom, 
may  extend  itself  to  other  usages  equally  barbarous." 

Executions  were  then  public,  and,  up  to  at  least  recent 
times,  were  attended  by  people  of  the  first  fashion.  Bos- 
well,  Johnson's  biographer,  had  a  great  taste  for  that 
sort  of  thing.  On  one  occasion,  he  records,  he  saw  six 
executed  at  Tyburn;  on  another,  fifteen  at  Newgate. 
The  solemn  procession  to  Tyburn  had  been  abrogated 
in  1783,  much  to  Boswell's  disgust,  and  Dr.  Johnson 
observed:  "The  age  is  running  mad.  Men  are  to  be 
hanged  in  a  new  way.  The  old  method  was  most  satis- 
factory to  all  parties;  the  public  was  gratified  by  a  pro- 
cession, the  criminal  was  supported  by  it.  Why  is  all 
this  to  be  swept  away?"  The  celebrated  George  Selwyn 
never  missed  a  hanging  without  some  legitimate  excuse. 
When  Hackman  was  executed  for  the  murder  of  Miss 
Ray,  the  Earl  of  Carlisle  wrote  Selwyn  an  account  of  it, 
and  added,  "Everybody  inquired  after  you."  Selwyn 
made  a  trip  to  Paris  to  see  Damien  broken  on  the  wheel 
for  attempting  to  assassinate  Louis  XV.  He  displayed  so 
much  interest  that  he  was  asked  by  a  French  nobleman 
if  he  were  a  hangman.  "No,  sir,"  was  his  reply,  "I  have 
not  that  honor;  I  am  only  an  amateur." 

Charles  Lamb  wrote  to  a  friend  in  Paris:  "Have  you 
seen  a  man  guillotined  yet?     Is  it  as  good  as  hanging?  " 

But  times  and  tastes  change.  In  1849  Dickens  saw  the 
two  Mannings,  husband  and  wife,  executed  on  the  wall  of 
Horsemonger  Lane  Jail,  and,  like  a  true-bom  Englishman, 
sat  down  quickly  and  wrote  a  letter  to  the  Times,  advo- 
cating a  change,  which  was  finally  effected,  I  believe,  in 
1868. 


Of  Charles  Dickens  15 

As  you  well  know,  the  goods  of  a  stranger  upon  the 
demised  premises  are,  with  certain  exceptions,  liable  to 
distress  for  rent.  When  Tommy  Traddles  was  lodging 
with  the  Micawbers  one  of  Micawber's  financial  storms 
broke,  and  forthwith  Micawber  wrote  to  Copperfield: 
"The  present  communication  is  penned  within  the  per- 
sonal range  (I  cannot  call  it  society)  of  an  individual  in  a 
state  closely  bordering  on  intoxication,  employed  by  a 
broker.  That  individual  is  in  legal  possession  of  the 
premises,  under  a  distress  for  rent.-  His  inventory 
includes  not  only  the  chattels  and  effects  of  every  descrip- 
tion belonging  to  the  undersigned,  as  yearly  tenant  of 
this  habitation,  but  also  those  appertaining  to  Mr. 
Thomas  Traddles,  lodger,  a  member  of  the  Honourable 
Society  of  the  Inner  Temple." 

Harold  Skimpole  had  an  amusing  experience  with  a 
landlord's  warrant,  under  which  his  furniture  was  dis- 
trained upon  —  at  least  amusing  to  him.  "The  oddity 
of  the  thing,"  said  Mr.  Skimpole,  with  a  quickened  sense 
of  the  ludicrous,  "is  that  my  chairs  and  tables  were  not 
paid  for,  and  yet  my  landlord  walks  off  with  them  as 
composedly  as  possible!  Now  that  seems  droll!  There 
is  something  grotesque  in  it.  The  chair  and  table 
merchant  never  engaged  to  pay  my  landlord  my  rent. 
Why  should  my  landlord  quarrel  with  him  ?  His  reasoning 
seems  defective." 

In  Oliver  Twist  Dickens  notices  one  of  the  common 
law  incidents  of  the  marriage  relation.  Mrs.  Bumble, 
the  helpmeet  of  the  celebrated  beadle,  had  unlawfully 
possessed  herself  of  a  certain  gold  locket  and  ring  taken 
from  Oliver's  mother  as  she  lay  a-dying  in  the  work- 
house. When  taxed  with  the  crime  Mr.  Bumble,  follow- 
ing the  example  of  our  common  ancestor,  endeavored 
to  shift  the  responsibility.  "It  was  all  Mrs.  Bumble. 
She  would  do  it,"  urged  Mr.  Bumble,  first  looking  round 
to  ascertain  that  his  partner  had  left  the  room. 


16  The  Law  and  Lawyers 

"That  is  no  excuse,"  replied  Mr.  Brownlow.  "You 
were  present  on  the  occasion  of  the  destruction  of  these 
trinkets,  and  indeed,  are  the  more  guilty  of  the  two  in  the 
eye  of  the  law;  for,  indeed,  the  law  supposes  that  your 
wife  acts  under  your  direction." 

"If  the  law  supposes  that,"  said  Mr.  Bumble,  squeezing 
his  hat  emphatically  in  both  hands,  "the  law  is  a  ass  — a 
idiot.  If  that's  the  eye  of  the  law,  the  law's  a  bachelor; 
and  the  worst  I  wish  the  law  is,  that  his  eye  may  be  opened 
by  experience." 

Dickens  had  doubtless  seen  many  coroners'  inquests, 
and  he  reports  several.  There  was  that  held  upon  the 
supposed  body  of  John  Harmon,  at  the  Six  Jolly  Fellow- 
ship Porters,  in  Our  Mutual  Friend,  when  Jesse  Hexam, 
who  had  such  remarkable  luck  in  finding  dead  bodies, 
was  the  star  witness.  When  Nemo  died,  inBleak  House, 
the  inquest  was  also  held  at  a  public  house,  as  seemed  to 
be  the  custom.  Indeed,  it  was  said  the  coroner  frequents 
more  public  houses  than  any  man  alive.  Dickens 
describes  the  proceedings  at  the  Sol's  Arms  very  graphi- 
cally, where  Little  Swills,  the  comic  vocalist,  looks  on  in 
order  to  reproduce  the  scene  at  the  Harmonic  meeting 
in  the  evening.  Little  Jo  is  the  only  mourner  for  the 
dead,  except  Lady  Dedlock,  whom  he  afterwards  guides 
to  her  lover's  grave  in  Tom-all-Alone's.  She  asks  the 
waif  of  the  street  if  it  is  consecrated  ground,  perhaps 
fearing  that,  if  a  suicide,  his  body  would  receive  outcast 
burial.  "Is  it  blessed?"  said  she.  "I'm  blest  if  I  know," 
said  Joe.  "Blest?  I  should  think  it  was  t'othered 
myself.     But  I  don't  know  nothink!" 

When  Daniel  Quilp  was  found  drowned,  and  the  coro- 
ner's jury  found  it  a  case  of  suicide,  he  was  buried  with  a 
stake  through  his  heart,  in  the  centre  of  four  lonely  roads. 
This  was  a  very  old  custom  in  England,  but  there  seems 
to  be  no  legal  authority  for  it.     Perhaps  the  place  was  so 


Of  Charles  Dickens  17 

selected  that,  by  the  continual  passage  of  the  living,  the 
burial-place  might  be  trodden  down  and  forgotten.  It 
has  been  suggested  that  the  stake  was  driven  through  the 
heart  to  keep  the  ghost  from  walking.  The  old  Canon 
Law,  I  believe,  simply  prohibited  the  performance  of  the 
burial  office  over  the  bodies  of  those  who  committed 
suicide  or  were  deprived  of  life  as  a  penalty  for  crime,  ^  and 
if  you  will  borrow  a  Prayer-Book  you  will  see  this  retained 
in  the  Rubric  of  the  Burial  Service  of  the  Church  of 
England, 

The  origin  of  the  cross-roads  burial  is  obscure  and 
worth  "a  look  into  the  antiquities,  than  which  nothing 
is  more  venerable,  profitable,  and  pleasant."  Some 
think  it  dates  from  so  late  a  period  as  1600,  though  this 
seems  improbable.  But  the  custom  was  abolished  in 
1823  by  4  Geo.  IV,  c.  52,  which  shows  that  the  story  of 
the  Old  Curiosity  Shop  must  antedate  that  time.  Bleak 
House  was  subsequent,  and  so  was  Nicholas  Nicklehy, 
in  which  Ralph  Nickleby,  as  he  goes  home  to  hang  him- 
self, paused  to  look  at  the  grave  of  a  suicide  in  whose 
case  he  himself  had  been  of  the  jury. 

In  Hard  Times  Dickens  complains,  and  justly,  of  the 
inequality  of  the  law  in  England,  which  allowed  divorce 
to  the  rich  and  forbade  it  to  the  poor.  Stephen  Black- 
pool, who  found  he  had  drawn  not  merely  a  blank  in  the 
matrimonial  lottery,  but  the  Black  Spot  itself,  when  he 
took  Mrs.  Blackpool  for  better  or  worse,  applied  to 
Bounderby  for  advice  how  to  be  rid  of  her.  "It  costs 
money,"  said  Bounderby,  "a  mint  of  money.  You'd 
have  to  go  to  Doctors'  Commons  with  a  suit,  and  you'd 

^  "Placuit,  ut  hit  qui  sibi  ipsis  voluntarie  .  .  .  inferunt  mortem; 
nulla  prorsus  pro  illis  in  ohlatione  commemoratio  fiat  neque  cum 
psalmis  ad  sepulturam  eorum  cadavera  deducantur.  .  .  .  Similiter 
et  de  his  placuit  fieri  qui  pro  suis  scelerihus  puniuntur."  —  Decre- 
tum  Causa  xxiii,  Quest.  V,  c.  12.     Gibson's  Codex,  450. 


18  The  Law  and  Lawyers 

have  to  go  to  a  Court  of  Common  Law  with  a  suit,  and 
you'd  have  to  go  to  the  House  of  Lords  with  a  suit,  and 
you'd  have  to  get  an  Act  of  ParHament  to  enable  you  to 
marry  again,  and  it  would  cost  you  (if  it  was  a  case  of 
very  plain  sailing)  I  suppose  from  a  thousand  to  fifteen 
hundred  pounds:  perhaps  twice  the  money."  Mr. 
Bounderby  who  afteru^ards  married  Gradgrind's  daugh- 
ter, found  himself  in  a  like  fix:  his  wife  leaves  him,  and 
he  sends  her  paraphernalia  after  her.  "I  am  Josiah 
Bounderby,  and  I  had  my  bringing  up.  She's  the  daugh- 
ter of  Tom  Grad grind,  and  she  had  her  bringing  up,  and 
the  two  horses  wouldn't  pull  together." 

Bounderby  probably  never  read  the  Apocrypha.  If 
he  had,  he  might  have  approved  the  wisdom  of  the  son 
of  Sirach,  who  said,  "Of  woman  came  the  beginning  of 
sin,  and  through  her  we  all  die.  If  she  go  not  as  thou 
wouldst  have  her,  cut  her  off  from  thy  flesh,  and  give  her 
a  bill  of  divorce,  and  let  her  go." 

Up  to  Justinian's  time  divorce  might  take  place  by 
mutual  consent,  but  it  is  said  that  only  one  took  advan- 
tage of  this  liberty  for  five  hundred  years.  The  laxity 
of  morals  which  marked  the  decadence  of  Rome  followed, 
and  was  caused  by  the  idle  luxury  of  the  later  period, 
producing  a  state  of  things  which  will  soon  be  repeated 
with  us  unless  some  reform  is  eff^ected.  To  elevate  our 
marriage  institutions  by  tinkering  with  our  divorce  laws 
is  like  putting  a  plaster  on  a  cancer.  The  evil  is  not 
superficial,  but  internal,  a  very  corruption  of  the  blood. 

But,  as  Lord  Coke  would  say,  let  us  now  return  to 
Dickens,  for  I  know  you  will  gladly  hear  him. 

By  the  common  law,  an  ordinary  suit  for  a  debt  was 
begun  by  a  capias  ad  respondendum,  under  which  the 
debtor  was  arrested  and  obliged  to  give  special  bail  for  his 
appearance.  If  a  judgment  was  recovered  against  him, 
and  he  was  unable  to  pay  the   debt,    or   refused,    as 


Of  Charles  Dickens  19 

Mr.  Pickwick  did,  to  pay  it,  he  was  arrested  on  a  capias  ad 
satisfaciendum  and  committed  to  a  prison,  such  as  the 
Fleet  or  the  Marshalsea,  until  the  debt  was  paid,  which 
might  mean  imprisonment  for  life,  in  small,  damp, 
crowded  rooms,  without  beds.  Pickwick  mistook  the 
underground  rooms  of  the  poor  prisoners  for  coal  cellars. 
The  prisoner  or  his  friends,  if  they  had  means  enough, 
might,  indeed,  pay  for  better  accommodations.  Pick- 
wick made  such  arrangements  in  the  Fleet,  and  Dorrit 
had  his  own  rooms  at  the  Marshalsea,  supported  by  Amy. 

The  law  was  gradually  reformed  in  England  by  various 
statutes  from  1844  to  1846,  and  imprisonment  was  finally 
abolished  in  1869.  In  Pennsylvania  the  Act  of  July  12, 
1842,  abolished  arrest  in  civil  suits,  certain  cases  excepted. 
These  changes  were  not  effected  without  great  effort. 
Imprisonment  for  debt  was  considered  proper  and  even 
necessary,  although  unknown  to  the  early  common  law. 
Richard  Steele,  in  No.  172  of  the  Spectator,  says  it  is  an 
honorable  thing  for  a  lawyer  to  imprison  the  careless 
debtor.  There  is  hardly  a  novel  of  Dickens,  or  of  Thack- 
eray either,  where  someone  is  not  imprisoned  for  debt. 
The  sheriff's  officer  first  took  the  defendant  to  a  sponging- 
house,  where  he  was  temporarily  detained  while  he  or 
his  friends  raised  the  money.  You  may  remember  how 
Rawdon  Crawley  was  seized  at  a  most  inopportune  time, 
and  taken  to  Mr.  Moss's  in  Cursitor  Street,  Chancery 
Lane,  for  one  hundred  and  sixty-six,  six  and  eight  pence, 
at  the  suit  of  Mr.  Nathan,  and,  likewise,  Mr.  Watkins 
Tottle  was  suddenly  arrested,  and  for  a  mere  trifle  of 
thirty-seven  pounds  found  himself  an  inmate  of  the  estab- 
lishment of  Mr.  Solomon  Jacobs,  also  of  Cursitor  Street, 
Chancery  Lane. 

Why  they  called  these  places  sponging-houses  I  do  not 
know,  unless  because  they  squeezed  the  debtors  in  them. 
Harold   Skimpole   was    "took   for  debt,"  and  a  goodly 


20  The  Law  and  Lawyers 

proportion  of  the  characters  in  Pickwick,  from  Pickwick 
himself  to  Jingle.  Indeed,  there  was  quite  a  family 
reunion  in  the  Fleet. 

Dickens  himself  knew,  as  a  lad,  what  it  was  to  be  "took 
for  debt,"  for  his  father  underwent  that  painful  experience, 
and  it  was  in  the  King's  Bench  Prison  that  Micawber 
uttered  his  famous  warning  that,  if  a  man  had  twenty- 
pounds  a  year  for  his  income,  and  spent  nineteen  pounds, 
nineteen  shillings  and  six  pence,  he  would  be  happy,  but 
that  if  he  spent  twenty  pounds  one,  he  would  be  miserable. 
There  was  an  insolvent  debtors'  act  then,  of  which 
Micawber  took  advantage,  and,  in  the  meantime,  enjoyed 
himself  hugely  in  composing  a  petition  to  Parliament 
praying  for  an  alteration  in  the  law  of  imprisonment  for 
debt. 

But  it  was  in  Little  Dorrit  that  Dickens  described  at 
large  life  in  the  debtor's  prison,  as  the  whole  story  centres 
about  it.  The  Marshalsea  was  originally  the  prison  of 
the  Court  of  the  King's  Steward  and  Marshal,  having 
jurisdiction  of  cases  arising  within  a  space  of  twelve 
miles  around  the  King's  Court,  "a  mere  Palace  Court 
jurisdiction,"  as  Mr.  Rugg,  Arthur  Clennam's  profes- 
sional adviser,  remarked  as  he  recommended  that  Clen- 
nam  should  be  arrested  by  preference  on  a  writ  from  the 
Superior  Court,  and  be  taken  to  the  King's  Bench  Prison. 
But  Clennam  preferred  to  go  to  the  Marshalsea,  because 
he  had  there  known  Little  Dorrit,  the  child  of  the 
Marshalsea. 

William  Dorrit  was  the  Father  of  the  Marshalsea,  and 
proud  of  the  title.  He  had  been  there  so  long  that  he  re- 
garded it  as  his  own.  He  was  the  oldest  inhabitant,  and 
all  the  newcomers  were  presented  to  him  at  what  resembled 
a  State  Drawing  Room ;  and  he  was  really  happier  there 
than  when  a  turn  of  fortune's  wheel  made  him  wealthy  and 
opened  the  prison  gate.    "It's  freedom,"  said  one  of  the 


Of  Charles  Dickens  21 

residents.  "Elsewhere  people  are  restless,  worried,  hur- 
ried about,  anxious.  Nothing  of  the  kind  here.  We  have 
done  all  that ;  we  know  the  worst  of  it ;  we  have  got  to  the 
bottom;  we  can't  fall;  and  what  have  we  found ?  Peace. 
That's  the  word  for  it.  Peace."  There  is  a  good  deal  of 
philosophy  in  that.  But  Dorrit  did  not  think  he  had  got 
to  the  bottom.  There  was  the  workhouse,  where  old 
Nandy  lived.  The  Father  of  the  Marshalsea  was  dis- 
gusted with  Amy  because  she  walked  with  Nandy  in  the 
street.  "The  Workhouse,"  said  he,  "the  Union!  No 
privacy,  no  visitors,  no  station,  no  respect.  Most  deplor- 
able." It  was  a  great  day  in  the  Marshalsea  when  old 
Dorrit  left  it  and  started  on  his  travels  to  Italy  and  Switzer- 
land, but  at  last  his  mind  fails  him,  and  wanders  back  to 
the  old  days  when  he  was  the  first  in  that  humble  society. 
Dickens  as  a  young  man  was  a  reporter  in  Doctors'  Com- 
mons and  in  David  Copperfield  has  a  good  deal  to  say  about 
the  Ecclesiastical  Courts.  Copperfield  entered  the  office  of 
Spenlow  &  Jorkins,  the  distinguished  proctors,  and  Steer- 
forth  gave  him  a  lucid  explanation.  "A  proctor,"  he  said, 
"is  a  sort  of  monkish  attorney.  I  can  tell  you  best  what 
he  is  by  telling  you  what  Doctors'  Commons  is.  It's  a 
little,  out-of-the-way  place  where  they  administer  what 
is  called  ecclesiastical  law,  and  play  all  kinds  of  tricks 
with  obsolete  old  monsters  of  Acts  of  Parliament,  which 
three-fourths  of  the  world  know  nothing  about,  and  the 
other  fourth  supposes  to  have  been  dug  up  in  a  fossil 
state  in  the  days  of  the  Edwards.  It's  a  place  that  has  a 
monopoly  in  suits  about  people's  wills,  and  people's  mar- 
riages, and  disputes  among  ships  and  boats."  Spenlow 
was  a  little,  light-haired  gentleman,  with  undeniable  boots 
and  the  stiffest  of  white  cravats  and  shirt  collars.  "He 
was  buttoned  up  mighty  trim  and  tight,  and  must  have 
taken  a  great  deal  of  pains  with  his  whiskers,  and  was  got 
up  with  such  care  that  he  could  hardly  bend  himself,  and, 


22  The  Law  and  Lawyers 

when  he  turned  to  glance  at  some  papers  on  his  desk,  was 
obUged  to  move  his  whole  body  from  the  bottom  of  his 
spine,  like  Punch." 

In  Sketches  by  Boz  there  is  an  amusing  account  of  Doc- 
tors' Commons,  and  the  case  of  "The  Office  of  the  Judge 
promoted  by  Bumple  v.  Sludherry'  in  the  Court  of  Arches. 
This  was  a  brawling  case;  that  is,  Sludberry  and  Bumple 
had  a  falling  out  at  a  vestry  meeting,  by  which  Sludberry 
the  aggressor,  brought  himself  within  the  jurisdiction  of 
the  court,  who,  having  heard  the  evidence,  pronounced 
upon  Sludberry  the  awful  sentence  of  excommunication 
for  a  fortnight  and  payment  of  costs.  Upon  which  Slud- 
berry, a  red-faced,  sly-looking  gingerbeer  seller,  asked  the 
court  to  take  off  the  costs  and  excommunicate  him  for  the 
rest  of  his  life,  as  he  never  went  to  church  at  all. 

David  Copperfield  tells  of  another  case,  where  a  baker 
was  excommunicated  for  six  weeks  and  sentenced  in  no 
end  of  costs  for  objecting  in  a  vestry  to  a  paving  rate; 
and  still  another  excommunication  case,  which  arose  out 
of  a  scuffle  between  two  church  wardens,  one  of  whom  was 
alleged  to  have  pushed  the  other  against  a  pump,  the  han- 
dle of  which  projected  into  a  school-house,  which  school- 
house  was  under  a  gable  of  the  church  roof,  thus  making 
the  push  an  ecclesiastical  offense. 

Another  case  of  Spenlow's  was  a  suit  for  annulment  of 
marriage.  The  husband,  whose  name  was  Thomas 
Benjamin,  took  out  his  marriage  license  as  Thomas  only, 
suppressing  the  Benjamin  in  case  he  should  not  find  him- 
self as  comfortable  as  he  expected.  Not  finding  himself 
as  comfortable  as  he  expected,  he  now  came  forward  and 
declared  that  his  name  was  Thomas  Benjamin,  and,  there- 
fore, he  was  not  married  at  all,  which  the  court  confirmed 
to  his  great  satisfaction. 

But  now  all  this  miserable  business  is  done  away  with 
in  England,  and  the  Ecclesiastical  Courts  deal  only  with 


Of  Charles  Dickens  23 

clergymen  of  the  Established  Church  in  their  professional 
character.  Let  us  be  thankful  that,  in  our  country,  we 
have  been  saved  all  this. 

We  will  now  look  at  the  picture  of  the  Court  of  Chan- 
cery which  Dickens  gives  us  in  Bleak  House,  a  novel 
written  for  the  purpose  of  attacking  that  court,  as  Nicho- 
las Nickleby  was  written  to  expose  the  Yorkshire  schools, 
and  Oliver  Twist  to  lay  bare  the  English  Poor  Laws  and 
the  horrors  of  crime. 

A  bill  in  equity,  in  those  days,  was  not  the  innocent 
document  which  with  us  bears  the  name,  but  a  much 
more  formidable  instrument.  In  the  first  place,  it  was 
very  lengthy.  After  the  caption  and  names  of  the  parties 
came  the  stating  part,  in  which  the  plaintiff  stated  the 
facts  of  his  case;  then  a  general  charge  of  confederacy 
against  the  defendants  and  divers  other  persons  then 
unknown.  This  was  originally  inserted  in  order  to  lay 
ground  for  amendment  by  adding  other  parties  to  the 
bill,  but  soon  became  a  mere  form.  The  next  was  the 
charging  part  of  the  bill,  in  which  were  set  out  anticipated 
defenses,  which  were  then  denied  or  avoided  in  order  to 
ground  interrogatories.  Then,  after  an  averment  that  the 
plaintiff  had  no  remedy  at  law,  came  the  interrogatories 
propounded  to  the  defendant,  with  prayers  for  relief  and 
process.  As  the  costs  were  in  proportion  to  the  length 
of  the  pleadings,  it  will  be  readily  seen  that  the  solicitors 
had  every  temptation  to  prolixity.  Thus,  a  witness 
testified  before  the  Chancery  Commission  of  1852:  "If 
I  draw  a  document  of  120  folios,  I  get  ^6,  and  if  I  compress 
that  into  30  folios  I  get  only  30  shillings.  In  fact  the 
worse  the  business  is  done  the  better  it  is  paid  for," — a 
folio  being,  as  I  believe,  fifteen  lines  of  six  words  each.^ 

1  Testimony,  Henry  Lake,  First  Report,  Chancery  Commission, 
1852,  Appendix  A,  page  180. 


24  The  Law  and  Lawyers 

It  frequently  happened  that  the  defendant's  answer 
rendered  it  necessary  or  advisable  to  amend  the  bill, 
adding  fresh  interrogatories  which  called  for  a  further 
answer.  Sometimes  the  plaintiff  would  designedly  refrain 
from  making  his  bill  full  in  the  first  instance  and  file  what 
was  called  a  fishing  bill,  and  then  on  the  answer  coming 
in,  would  avail  himself  of  its  averments  to  frame  his 
amendment.  This  was  called  ^'scraping  the  defendant's 
conscience.''  ^ 

As  the  defendant  very  frequently  filed  a  cross-bill 
against  the  plaintiff  to  scrape  his  conscience,  and  there 
were  continual  opportunities  for  exceptions,  and  refer- 
ences to  a  master  and  appeals,  it  will  easily  be  seen  that  by 
the  time  the  parties'  consciences  had  become  thoroughly 
scraped,  the  proceedings  had  become  unconscionably 
complicated. 

Again,  the  rules  of  the  court  required  that  every  person 
having  any  interest,  no  matter  how  theoretical  or  con- 
tingent, must  be  made  a  party,  and  this  added  enor- 
mously to  the  expense,  and  also  to  the  vexation  of  suitors. 
Many  a  man  whose  interest  was,  as  a  practical  matter, 
nothing,  would  be  made  a  defendant,  and,  fearing  to  dis- 
regard the  suit,  would  be  obliged  to  employ  counsel. 
Forster,  Dickens's  biographer,  mentions  a  case  of  a 
legacy  of  three  hundred  pounds  charged  on  a  farm  worth 
twelve  hundred  pounds.  There  was  but  one  defendant 
in  reality,  but  seventeen  according  to  the  technical  rule, 
and,  after  two  years,  it  was  discovered  that  an  eighteenth 
should  be  added,  and  the  suit  begun  de  novo,  after  costs 
had  been  incurred  of  over  eight  hundred  pounds.  This 
case  Dickens  worked  up  in  Bleak  House  as  the  story  of 
Gridley,  "the  man  from  Shropshire." 


^  Testimony,  James  Lowe,  Chancery  Commission,  1826,  pages  165, 
166. 


Of  Charles  Dickens  25 

The  testimony  in  a  Chancery  case  was  not  oral,  but 
taken  in  writing  by  commissioners,  or  examiners.  The 
party  examining  prepared  his  questions  in  writing,  and 
the  other  side  cross-examined,  if  he  chose,  and  questions 
were  propounded  to  the  witnesses  by  the  examiner. 
This  method  was  most  unsatisfactory,  tedious,  and  expen- 
sive. A  witness  before  the  Chancery  Commission  testi- 
fied that  in  one  case,  where  a  bill  had  been  filed  against 
the  directors  of  a  bank  to  hold  them  liable  for  its  debts, 
the  expense  of  obtaining  the  testimony  of  one  witness 
was  over  eight  hundred  pounds.  The  witness  ob- 
served that  "the  tremendous  expense  expedited  a  com- 
promise." ^ 

Then  every  party  had  to  take  office  copies  of  every 
paper  filed  or  at  least  pay  for  them,  on  penalty  of  incur- 
ring the  displeasure  of  the  officials. 

Then  the  delay  caused  by  appeals  was  something  of 
which  we  can  have  little  idea  at  this  time.  In  1811  a 
Scotch  solicitor  testified  before  the  committee  on  delays 
of  suits  in  Chancery:  "I  know  that  there  has  been  a 
great  increase  of  appeals,  and  I  know  that  appeals  are 
entered,  many  of  them,  only  for  the  purposes  of  delay. 
There  was  a  remarkable  instance  of  it  this  session, 
to  prevent  a  person  paying  one  thousand  pounds  into 
court;  it  was  in  the  House  (of  Lords)  seven  years.  I 
had  orders  to  withdraw  the  appeal  as  soon  as  it  should  be 
called  on,  and  when  it  came  to  the  last  moment  I  took  it 
away  upon  paying  the  costs."  ^ 

In  1824  a  witness  before  the  Chancery  Commission 
spoke  of  the  "heart-sickening  delays"  in  appeals,  and 

^  Testimony,  S.  B.  Toller,  Third  Report,  Chancery  Commission, 
1856,  page  38. 

'^  Testimony,  James  Chalmers,  Chancery  Commission,  June  18, 
1811,  page  24. 


26  The  Law  and  Lawyers 

mentioned  one  important  case,  appealed  from  the  Mas- 
ter of  the  Rolls  to  the  Chancellor,  which  remained 
unheard  for  nearly  six  years.^ 

Well  might  poor,  crazy  Miss  Flite  say  so  often:  "I 
expect  a  judgment.    Shortly.     On  the  day  of  Judgment." 

Litigated  or  contentious  suits  we  all  expect  to  be 
somewhat  protracted;  but  when  all  hands  simply  want 
their  rights  determined  by  the  court,  it  seems  cruel  to 
prohibit  them.  Yet  this  was  what  the  Court  of  Chan- 
cery did  by  making  no  distinction  between  contentious 
and  merely  administrative  business.  The  disputes 
which  arise  over  the  interpretation  of  wills,  the  settle- 
ment of  accounts,  and,  in  short,  the  thousand  and  one 
things  which  our  Orphans'  Court  attends  to  every  month, 
would,  in  England,  under  the  old  practice  be  the  sub- 
jects of  bills  in  equity,  with  all  their  delay,  expense, 
and  vexation  of  spirit;  as,  for  example,  where  a  trustee 
filed  a  bill  merely  to  obtain  the  direction  of  the  court  in 
the  execution  of  the  trust,  or  to  have  the  terms  of  an 
obscure  will  construed  by  the  court,  or  where  a  creditor 
was  required  to  make  formal  proof  of  his  claim:  all  these 
proceedings  assumed  the  cumbrous  and  expensive  charac- 
ter of  hostile  suits.^ 

In  1855  it  was  said  before  the  Chancery  Commission 
that  it  took  the  registrar  six  months  merely  to  settle  the 
decree  in  the  settlement  of  an  intestate  estate  where 
some  of  the  children  had  been  advanced.  It  only 
required  somebody  to  do  it  "who  understood  figures," 
but  there  was  "nothing  that  any  man  of  business  might 
not  settle  in  two  or  three  hours."  ^ 

1  Testimony,  John  Forster,  Chancery  Commission,  1826,  Appen- 
dix A,  page  302. 

-  Chancery  Commission,  First  Report,  1852,  page  10. 

'  Testimony,  R.  B.  Follett,  Chancery  Commission,  Third  Report, 
1856,  page  92. 


Of  Charles  Dickens  27 

Then  when  the  decision  of  the  Chancery  suit  involved 
a  preUminary  determination  of  the  legal  rights  of  the 
parties,  the  Chancellor  generally  considered  himself 
bound  to  direct  an  issue  to  a  court  of  law,  or  take  the 
opinion  of  the  law  judges.  He  was  concluded  to  be  sure 
by  neither,  but  took  this  course  to  assist  his  conscience, 
and  it  need  hardly  be  said  that  it  was  a  proceeding  which 
did  not  speed  the  cause  nor  lessen  its  expense. 

In  one  case,  where  the  contest  involved  the  deter- 
mination of  who  were  the  next  of  kin,  the  Master  of  the 
Rolls  heard  the  case  for  three  days,  and  then  directed  an 
issue.  The  case  was  tried  for  two  days,  and  then  the 
Master  of  the  Rolls,  dissatisfied  with  the  verdict,  directed 
a  new  trial.  The  Master  of  the  Rolls  was  again  dis- 
satisfied, but  no  further  trial  was  awarded,  for  the  very 
simple  reason  that  the  fund  of  five  thousand  pounds  was 
just  sufficient  to  pay  the  costs.  ^ 

How  Bentham  lashed  the  whole  system.  "Equity!" 
he  exclaims.  "Equity!  It  is  a  term  of  derision,  a  cruel 
mockery.  Is  it  a  remedy?  It  sweetens  like  sugar  of 
lead;  it  lubricates  and  soothes  like  oil  of  vitriol."  And 
in  another  place  he  says,  "The  parties,  unheard  of  and 
unthought  of,  pay  their  way  through  the  offices  like  half- 
starved  flies  crawling  through  a  row  of  spiders." 

The  Court  of  Chancery,  in  some  of  the  Colonies,  was 
even  worse,  if  possible.  According  to  Parkes's  "History 
of  the  Court  of  Chancery" —  I  have  not  seen  the  report 
of  the  Parliamentary  Commission  at  first  hand  —  the 
Court  of  Chancery  in  the  island  of  Montserrat,  West 
Indies,  had  several  times  been  presented  as  a  public 
nuisance;  and,  he  says,  "the  tornado  which  periodically 
interrupts  the  sittings  of  the  West    India    Courts  of 

'  Testimony  of  Joseph  Leech,  Chancery  Commission,  1852,  Appen- 
dix A,  page  7. 


28  The  Law  and  Lawyers 

Chancery  is  the  only  temporary  rehef  of  the  islanders 
from  the  visitation  of  equity." 

A  dishonest  trustee  sometimes  used  these  delays  as  an 
engine  of  fraud.  He  would  say,  for  example,  to  a  minor 
coming  of  age:  "There  is  a  difficulty  in  this  case,  and  we 
must  get  the  direction  of  the  court.  If  we  go  formally  into 
court  you  will  have  some  time  to  wait,  but  if  you  take  the 
accounts  as  they  are  you  will  get  so  much  immediately." 
Naturally,  the  young  man  would  take  what  he  could, 
rather  than  spend  years  in  Chancery  trying  to  get  more.  ^ 

The  pages  of  Bleak  House  do  not  disclose  the  details 
of  the  great  case  of  Jarndyce  v.  Jarndyce,  although,  as  the 
book  was  professedly  written  to  show  up  the  iniquities  of 
the  Court  of  Chancery,  and  is  spun  out  to  more  than  a 
thousand  pages,  surely  a  few  might  have  been  spared  to 
give  the  reader  a  definite  idea  of  what  the  case  was  about. 
It  does  appear,  however,  that  the  question  was  how  the 
trusts  under  the  Jarndyce  will  were  to  be  administered, 
and  that,  while  the  costs  were  steadily  increasing,  the 
value  of  the  estate  was  steadily  decreasing.  "It  was  a 
street  of  perishing  blind  houses,  and  their  eyes  stoned  out, 
without  a  pane  of  glass,  without  so  much  as  a  window 
frame,  with  the  bare  blank  shutters  tumbling  from  their 
hinges,  and  the  iron  rails  peeling  away  in  flakes  of  rust; 
the  chimneys  sinking  in;  the  stone  steps  to  every  door 
(and  every  door  might  be  Death's  Door)  turning  stag- 
nant green."  Meanwhile,  the  legatees  were  reduced  to 
poverty,  and  everybody  had  to  have  or  pay  for  copies  of 
cartloads  of  papers,  and  all  hands  went  down  the  middle 
and  up  again,  through  such  an  infernal  country  dance  of 
costs  and  fees  and  nonsense  and  corruption  as  was  never 
dreamed  of  in  the  widest  visions  of  a  Witch's  Sabbath. 


^  Testimony,  John  Bell,  Chancery    Commission,  1826,  Appendix 
A,  page  252. 


Of  Charles  Dickens  29 

"And  nothing  ever  ends.  And  we  can't  get  out  of  the 
suit  on  any  terms,  for  we  are  made  parties  to  it,  and  must 
be  parties  to  it,  whether  we  Hke  it  or  not." 

So  Tom  Jarndyce  committed  suicide  from  despair. 
"For,"  said  he,  "it's  being  roasted  at  a  slow  fire,  it's 
being  stung  to  death  by  single  bees,  it's  going  mad  by 
grains." 

So  Gridley,  the  ruined  suitor,  dies  from  sheer  exhaus- 
tion. Meanwhile,  the  Lord  High  Chancellor,  sitting  in 
the  very  heart  of  the  London  fog,  hears  the  interminable 
case,  term  after  term,  until  a  later  will  is  discovered 
among  Krook's  old  rubbish,  and  the  suit  collapses,  just 
as  the  entire  property  is  eaten  up  in  costs,  leaving  nothing 
behind  but  what  Conversation  Kenge  called  a  Monument 
of  Chancery  Practice. 

All  these  evils  of  Chancery  were  well  known,  and  had 
been  exposed  over  and  over  again.  But  where  the  Blue 
Books,  in  which  the  evidence  is  contained,  find  one  reader, 
'D\c\ie.ns  s  Bleak  House  will  find  a  myriad.  Even  Parkes's 
"History  of  the  Court  of  Chancery,"  one  of  the  most  inter- 
esting law-books  ever  written,  does  not  attract  the  casual 
reader.  It  is  a  pity,  therefore,  not  to  put  too  fine  a  point 
on  it,  as  Snagsby  would  say,  that  Dickens  can  hardly  be 
said  to  have  been  quite  fair  in  Bleak  House,  for  at  the 
very  time  it  was  written,  the  Court  of  Chancery  had  been 
radically  changed  by  an  Act  of  Parliament,  of  which 
Dickens  takes  no  notice  whatever.  Bleak  House  was 
published  in  monthly  numbers,  from  March,  1852,  to 
September,  1853,  and  its  preface  is  dated  August,  1853, 
while,  strange  to  say,  the  Acts  of  15  and  16  Vict.,  passed 
July  1,  1852,  c.  86  and  87,  made  most  important  altera- 
tions in  the  method  of  taking  evience,  substituted  printed 
bills  for  engrossed  bills,  simplified  rules  as  to  joinder  of 
parties,  gave  the  Chancellor  full  power  to  determine  ques- 
tions of  law,  substituted  salaries  for  fees,  and  abolished 


30  The  Law  and  Lawyers 

many  useless  expenses  and  offices.  These  acts  substan- 
tially reformed  the  court,  though  it  continued  its  separate 
existence  until  the  Judicature  Act  of  1873,  when  the 
courts  were  consolidated,  and  (to  notice  one  important 
change)  it  was  provided  that  in  case  of  any  conflict  be- 
tween the  rules  of  equity  and  the  rules  of  the  common 
law  with  reference  to  the  same  matter,  the  rules  of  equity 
should  prevail.^  This  principle,  we  are  proud  to  say,  has 
been  recognized  in  Pennsylvania  from  the  earliest  times, 
and  in  Pollard  v.  Shaffer,-  our  leading  case  upon  the  sub- 
ject, Chief  Justice  McKean  said  in  terms,  "Equity  is  part 
of  the  law  of  Pennsylvania."  The  way  in  which  our  pecu- 
liar system  was  developed  is  extremely  interesting,  and 
every  student  should  read  not  only  Laussat's  early  essay 
on  the  subject,  but  also  Mr.  Sydney  George  Fisher's  arti- 
cle on  the  "Administration  of  Equity,  through  Common 
Law  Forms,"  in  1  Law  Quarterly  Review,  455. 

Yet,  in  his  preface  to  Bleak  House,  in  August,  1853, 
Dickens  wrote:  "As  it  is  wholesome  that  the  public 
should  know  what  has  been  doing,  and  still  is  doing,  in 
this  connection,  I  mention  here  that  everything  set  forth 
in  these  pages  concerning  the  Court  of  Chancery  is  sub- 
stantially true,  and  within  the  truth." 

If  Dickens  really  intended  that  his  readers  should 
know  the  truth  he  should  have  mentioned  the  Act  of 
1852,  and  he  certainly  should  have  known  of  this  act,  as 
the  Parliamentary  Commission  which  gave  rise  to  it 
could  hardly  have  escaped  his  attention.  This  com- 
mission, appointed  in  1850,  was  headed  by  Romilly,  then 
Attorney-General,  and  the  bill  suggested  by  it  was  pre- 
sented by  Lord  St.  Leonards  and  approved  by  Lord 
Lyndhurst.  Dickens,  therefore,  did  not  kill  the  Chancery 
snake,  but  only  jumped  on  it  after  it  was  dead. 

1  Pugli  V.  Heath,  7  App.  Cases,  237. 
2 1  Dallas,  210  (1787). 


Of  Charles  Dickens  31 

I  have  passed  over  in  a  very  cursory  and  digressive 
manner  some  of  the  Lawyers,  and  something  of  the  Law, 
as  portrayed  by  Charles  Dickens.  Did  space  permit,  it 
might  be  interesting  to  speak  also  of  other  like  topics, 
such  as  the  Patent  Laws,  of  his  views  as  to  the  EngUsh 
Poor  Laws  as  found  in  Oliver  Twist  and  the  Uncommercial 
Traveller,  and  what  he  has  to  say  of  prisons  and  penal  sys- 
tems, of  solitary  confinement,  and  his  criticisms  of  our 
Philadelphia  penitentiary. 

There  are  many  interesting  trials  in  Dickens.  Every 
one  thinks  at  once  of  the  most  celebrated,  Bar  dell  v. 
Pickwick,  but  there  are  many  others.  Read  the  trial 
of  Darnay  for  treason  in  the  Tale  of  Two  Cities,  and  his 
trials  in  Paris  during  the  Terror;  the  trials  of  the  Artful 
Dodger  and  of  Fagin  in  Oliver  Twist,  Kit's  trial  at  the 
Old  Bailey  in  the  Old  Curiosity  Shop,  and  the  deatK'^'') 
sentence  of  Magwitch  in  Great  Expectations.  And  in 
that  one  of  Dr.  Marigold's  Prescriptions,  called  "To  be 
Taken  with  a  Grain  of  Salt,"  there  is  a  description  of  a 
murder  trial  combined  with  a  very  good  ghost  story. 

Then,  too,  Dickens  often  lingers  over  his  descriptions 
of  the  Inns  of  Court,  dear  to  every  American  lawyer's 
memory  or  imagination,  recalling  in  their  very  names 
the  associations  of  centuries  of  legal  history. 

These  and  sundry  other  matters  of  great  importance 
I  pass  over  with  dry  foot,  and  leave  the  learned  and 
judicious  reader  to  his  own  judgment  thereof.  But  any- 
one who  will  read  Dickens's  books,  with  these  things  in 
mind,  will  find  them  as  interesting  as  any  novels  —  by 
Justinian. 


II 

l^he  Law  and  Lawyers  of 
Pickwick 


The  Law  and  Lawyers  of 
Pickwick^ 

When  a  lawyer  is  asked  to  do  anything  he  always 
searches  for  a  precedent.  So  when  you  invited  me  to 
address  you  upon  some  legal  subject  after  dinner,  I 
naturally  turned  to  the  ancient  authorities  and  customs  of 
the  profession.  Fortunately,  we  are  but  reviving  the 
practice  of  the  Inns  of  Court,  in  which  our  legal  ancestors 
received  their  education  by  eating  dinners  and  then  dis- 
cussing cases,  and,  let  us  hope,  by  digesting  both;  and 
it  is  even  said  that  the  dinner  part  of  the  program  was  the 
most  important  as  well  as  the  most  agreeable. 

Moreover,  Lord  Coke  records  in  12  Rep.  19,  that  in 
Michaelmas  Term,  4  Jac.  1  Post  Prandium,  there  was 
moved  a  question  among  the  Judges  and  Serjeants,  at 
Serjeants'  Inn,  if  the  High  Commissioners  in  Ecclesias- 
tical causes  may  by  force  of  their  commission  imprison 
any  man  or  no?  With  the  resolution  of  the  question 
we  are  not  now  concerned;  it  is  as  stale  as  the  dinner 
which  preceded  it. 

Three  hundred  years  in  time  and  three  thousand 
miles  in  space  separate  us  from  that  dinner  of  the  Judges 
and  Serjeants,  at  Serjeants'  Inn.  I  will  not  say  a  corre- 
sponding difference  exists  between  the  diners,  but  there 
is  a  wide  distinction  in  character  between  that  grave 
constitutional  question  and  our  subject  this  evening. 
However,  with  the  authority  of  what  Lord  Coke  would 
call    a    "book-case,"    and   supported    by    the    glorious 

^  A  paper  read  before  the  Law  Club  of  Pittsburgh,  post  prandium, 
on  the  evening  of  May  9,  1908. 


36  The  Law  and  Lawyers 

traditions  of  the  Inns  of  Court,  I  invite  your  attention 
this  evening  to  The  Law  and  Lawyers  of  Pickwick. 

Authors,  Hke  dogs  and  dogmas,  have  their  days. 
Literature  has  its  fashions,  Hke  flounces  and  hoopskirts, 
or,  to  use  a  more  dignified  comparison,  has,  Hke  the  ocean, 
its  waves  and  tides.  Never  was  a  book  received  with 
wilder  enthusiasm  than  The  Pickwick  Papers.  It  has 
been  translated  into  twenty  languages,  the  imitations 
of  it  were  numerous,  its  editions  almost  innumerable. 
This  popularity  continued  for  many  years.  Pickwick 
was  the  first  book  on  which  children  were  taught  to  cut 
their  literary  teeth;  when  they  grew  up  they  kept  on 
devouring  it,  and  while  the  young  people  of  this  genera- 
tion sometimes  affect  to  neglect  Dickens,  there  are  decided 
indications  of  a  renaissance  of  interest.  Dickens  Socie- 
ties and  Fellowships  are  increasing  in  number  all  over 
the  world  and  Dickens  will  come  into  his  own  again, 
while  the  "best  sellers"  of  the  book  factories,  after  their 
brief  moment  of  glory,  disappear  forever  in  darkness, 
like  the  burned-out  sticks  of  literary  rockets.  He  won 
immortality  through  the  Posthumous  Papers  of  the  Pick- 
wick Club,  which  he  produced  at  the  age  of  24. 

Dickens's  early  ambition  was  to  be  an  actor,  and  he 
was  always  considered  a  brilliant  amateur.  Pickwick, 
indeed,  is  merely  a  succession  of  scenes,  like  a  magic- 
lantern  show.  The  preface  says,  "The  author's  object 
in  this  work  was  to  place  before  the  reader  a  constant 
succession  of  characters  and  incidents;  to  paint  them 
in  as  vivid  colors  as  he  could  command,  and  to  render 
them  at  the  same  time  lifelike  and  amusing."  There  is 
no  more  plot  in  Pickwick  than  there  is  in  an  omelette; 
yet,  allowing  for  exaggeration  and  caricature,  the  book  is 
really  important  because  it  contains  a  vivid  and  interest- 
ing picture  of  life,  especially  low  or  middle  class  life,  in 
England,  in  the  Thirties,  for  which  "histories  may  be 


Of  Pickwick  37 

searched  in  vain."  The  story  is  therefore  valuable,  for 
old  Weller's  coach  has  long  since  been  supplanted  by  the 
locomotive,  and  his  city  cousin,  the  'bus  driver,  has  met 
his  rival  in  the  motor  'bus.  Emerson  says  Dickens  is  a 
painter  of  English  details,  like  Hogarth.  And  yet,  in 
spite  of  the  low  life  depicted,  the  book  is  not  coarse  or 
vulgar.  As  the  Edinburgh  Review,  in  1838,  gravely 
observed,  "Although  the  reader  is  led  through  scenes 
of  poverty  and  crime,  we  recollect  no  passage  which 
ought  to  cause  pain  to  the  most  sensitive  delicacy  if  read 
aloud  in  female  society,"  ^  and  Dickens  himself,  in  the 
preface  to  the  original  edition  of  Pickwick,  says  that  "he 
trusts  that  throughout  this  book  no  incident  or  expression 
occurs  which  would  call  a  blush  into  the  most  delicate 
cheek  or  wound  the  feelings  of  the  most  sensitive  person." 

It  is  only  natural  that  Pickwick,  being  Dickens's  first 
book  (except  the  Sketches),  should  reflect  his  early  ex- 
perience of  law  and  lawyers :  and  it  was  the  more  natu- 
ral that  he  should  caricature  the  lawyers,  because  the  men 
of  our  profession  are  too  often  regarded  as  the  Ishmaelites 
of  society,  and  the  law  itself  as  the  scapegoat  of  our  social 
ills. 

Dickens  had  a  marvellous  memory,  like  the  most  sensi- 
tive photographic  films,  and  so  his  reproductions  exag- 
gerated lights  and  shadows  and  the  resulting  pictures 
were  marked  by  caricature  and  burlesque.  Caricature, 
the  humorous  exaggeration  of  characteristics,  is  always 
popular,  for  every  one  likes  to  see  every  one  else  ridiculed, 
and  burlesque  renders  any  subject  ludicrous  by  an  in- 
congruous manner  of  treating  it.  So  when  a  talent  for  cari- 
cature and  burlesque  is  turned  loose  upon  the  unpopular 
profession  of  the  law,  the  result  is  highly  edifying  to  the 
laity.     But  the  law  had  its  revenge  on  Dickens,  for  in  his 

1  68  Edin.  Review,  October,  1838,  p.  97. 


38  The  Law  and  Lawyers 

later  life  he  had  two  personal  experiences  of  litigation 
which  probably  confirmed  his  early  impressions. 

In  Dickens  v.  Lee,  8  Jurist,  183  (1844),  Charles  Dickens 
filed  a  bill  to  restrain  the  defendant  from  publishing  a 
fraudulent  and  colorable  imitation  of  the  Christmas  Carol, 
which  was  advertised  as  a  "Christmas  Ghost  Story  reor- 
iginated  from  the  original  by  Charles  Dickens,  Esq.,  and 
analytically  condensed  expressly  for  this  work."  To  add 
insult  to  injury  the  defendant  dedicated  the  work  to 
Charles  Dickens  himself.  Vice-Chancellor  Knight-Bruce 
decided  substantially  in  favor  of  the  plaintiff,  but  un- 
fortunately Dickens  had  heavy  costs  to  pay,  so  that  the 
fruit  of  his  legal  victory  was  nothing  but  a  Dead  Sea 
apple.  In  this  case  the  Vice-Chancellor  declined  to  hear 
Serjeant  Talfourd,  Dickens's  counsel,  causing  that  dis- 
tinguished lawyer  disappointment  amounting  to  agony, 
as  he  had  sat  up  until  three  in  the  morning  preparing  his 
speech. 

In  1858,  Dickens,  having  had  a  disagreement  with  Brad- 
bury &  Evans,  the  publishers  of  Household  Words,  and 
the  partnership  being  dissolved,  advertised  the  publication 
of  All  the  Year  Round,  stating  in  his  advertisement  that 
Household  Words  would  be  discontinued.  Sir  John 
Romilly,  the  Master  of  the  Rolls,  held,  however,  that  he 
had  no  right  to  do  this,  as  the  right  to  use  the  title  House- 
hold Words  was  an  asset  of  the  partnership  and  should  be 
sold  as  such.  It  was  bought  in  by  Dickens,  for  £3,550, 
and  the  publication  of  Household  Words  ceased.^ 

But  Dickens  had  many  friends  among  the  lawyers. 
He  had  dedicated  Pickwick  to  this  same  James  Noon  Tal- 
fourd, who  afterwards  was  his  counsel,  in  recognition  of 
Talfourd's  efforts  in  the  cause  of  authorship,  for  Talfourd, 
in  spite  of  Macaulay's  opposition,  had  exerted  himself  in 

^ Bradbury  V.  Dickens,  27  Beav.  53  (1859).  3  Forster's  Dickens,  239. 


Of  Pickwick  39 

the  House  of  Commons  in  behalf  of  the  Copyright  Act, 
from  1837  to  1842,  when  his  ejfforts  succeeded  in  passing 
the  Act  of  5th  Victoria,  ch.  45,  on  which  the  English  law 
of  copyright  now  depends.  Dickens  was  then  a  reporter 
in  the  "Gallery"  and  doubtless  made  there  the  acquaint- 
ance of  Talfourd,  which  ripened  into  a  warm  friendship; 
indeed  when  Pickwick  was  completed,  the  event  was  cel- 
ebrated at  a  dinner,  with  Talfourd  in  the  chair. 

We  will  now  follow  the  footsteps  of  the  Pickwickians 
in  their  pleasant  though  desultory  paths. 

The  Pickwick  Club  was  evidently  intended  as  a  bur- 
lesque of  the  British  Association  for  the  Advancement  of 
Science,  which  was  organized  by  Sir  David  Brewster  and 
others  in  1831,  but  the  machinery  of  the  Club  was  soon 
abandoned  and  the  book  records  only  the  travels  and  ad- 
ventures of  Samuel  Pickwick,  the  too  susceptible  Tracy 
Tupman,  the  poetic  Augustus  Snodgrass,  and  the  sporting 
Nathaniel  Winkle.  The  illustrious  Pickwick  was  a  mature 
bachelor  who  had  amassed  a  competent  fortune,  appar- 
ently in  the  sugar  business  in  Demerara,  and  Snod- 
grass, in  his  minority,  had  been  Mr.  Pickwick's  ward.^ 
The   story   is   said   to   begin   on  May    13,    1827,  when 

^  The  lovely  Mrs.  Pott  called  him  "a  delightful  old  dear,"  and 
Pickwick  appears  throughout  the  tale  as  an  old  man.  When  he 
kissed  his  hand  to  her  at  the  Eatanswill  election  the  crowd  shouted, 
"Oh,  you  wenerable  sinner,"  and,  "I  see  him  a-vinkin  at  her  with  his 
vicked  old  eye."  Mrs.  Raddle  called  him  "you  old  wretch";  Mrs. 
Cluppins  called  him  an  old  brute;  his  counsel  drew  attention  to  his 
age  at  the  trial  of  Bardell  v.  Pickwick;  at  Bath  the  ladies  of  an 
ancient  and  whist-like  appearance  immediately  saw  that  Pickwick 
was  precisely  the  very  man  they  wanted.  At  the  close  of  the  book 
he  calls  himself  "a  lonely  old  man."  It  gives  one  a  slight  shock 
to  find  that  he  could  not  have  been  much  over  forty-five  or  fifty 
years  old,  for  when  at  Dingley  Dell  on  Christmas  Day  he  is  asked 
to  slide  on  the  ice,  Pickwick  says  he  used  to  do  it  when  he  was  a 
boy,  but  he  hadn't  done  such  a  thing  for  thirty  years. 


40  The  Law  and  Lawyers 

Pickwick  and  his  friends,  in  company  with  Alfred  Jingle, 
set  out  for  Rochester,  where  they  arrive  in  time  for  the 
charity  ball,  when  Jingle,  arrayed  in  Winkle's  "Pick- 
wick coat,"  quarrels  with  Dr.  Slammer,  of  the  97th  Regi- 
ment. May  13,  1827,  fell,  as  all  the  world  knows  (or  at 
least  knew  then) ,  on  Sunday,  on  which  day  it  is  obviously 
impossible  that  English  people  should  have  a  ball,  but  as 
we  shall  see,  the  date  is  wrong  by  three  years,  and  should 
be  May  13,  1830.^ 

Then  follow  in  rapid  succession  the  celebrated  duel  of 
Winkle  and  Dr.  Slammer,  the  visit  to  the  Wardles  at 
Dingley  Dell,  the  shooting  party  and  the  cricket  match, 
and  the  elopement  of  Jingle  and  Rachel  Wardle,  the  old 
maiden  aunt,  to  the  White  Hart  Inn,  High  Street,  Bor- 
ough. Here  we  meet  Sam  Weller,  who  directs  Jingle  to 
Doctors'  Commons,  for  his  marriage  license.  But  Pick- 
wick and  his  lawyer,  little  Mr.  Perker,  of  Gray's  Inn, 
save  the  lady  in  the  nick  of  time.  Perker  was  "a  little 
man  with  a  dark,  squeezed-up  face  and  small  restless 
black  eyes  that  kept  winking  and  twinkling  on  each  side 
of  his  little  inquisitive  nose  as  if  they  were  playing  a  per- 
petual game  of  peep-bo  with  that  feature.  He  was  dressed 
all  in  black,  with  boots  as  shiny  as  his  eyes,  a  low  white 
neck  cloth  and  a  clean  shirt  with  a  frill  to  it.  A  gold 
watch  chain  and  seals  depended  from  his  fob.  He  car- 
ried his  black  kid  gloves  in  his  hands,  not  on  them ;  and 
as  he  spoke,  thrust  his  wrists  beneath  his  coat-tails,  with 
the  air  of  a  man  who  was  in  the  habit  of  propounding 
some  regular  posers."  The  remarkable  fact  in  this  de- 
scription seems  to  be  that  the  lawyer  wore  a  clean  shirt  1^ 

^  Jingle  refers  on  the  opening  day  of  the  story  to  the  French  Revo- 
lution, of  July,  1830.  Mr.  Percy  Fitzgerald,  in  his  Pickwick  Dic- 
tionary, analyzes  elaborately  the  chronology  of  the  story. 

^  Mr.  Blackmore,  of  Ellis  &  Blackmore,  who  were  Dickens's 
employers,  always  contended  that  Mr.  Ellis  was  the  original  of 
Perker. 


Of  Pickwick  41 

Rachel  being  rescued,  the  Pickwickians  returned  to 
Dingley  Dell  and  found  that  the  lovesick  Tupman,  after 
Rachel's  elopement,  had  disappeared  with  suicidal  intent. 
They  follow  him  to  the  Leather  Bottle,  at  Cobham,  and 
find  Tupman  absorbing  fresh  life  from  a  roast  fowl,  bacon, 
ale  "and  et  ceteras."  After  discovering  the  stone  marked 
with  the  cabalistic  initials  of  Bill  Stumps  (an  episode 
which  Dickens  probably  borrowed  from  Scott's  Anti- 
quary) ,  they  all  return  to  Dingley  Dell  and  then  back  to 
London  to  exhibit  the  ancient  relic  at  a  meeting  of  the 
Pickwick  Club,  and  prepare  to  visit  the  ancient  borough 
of  Eatanswill,  at  the  invitation  of  Perker,  who  was  agent 
for  the  Honorable  Samuel  Slumkey,  one  of  the  candidates. 

The  chronology  of  Pickwick  is  a  little  mixed,  but  it 
seems  to  have  been  early  in  July  that  a  memorable  occur- 
rence took  place  in  Mr.  Pickwick's  apartments  in  Goswell 
Street.  Mrs.  Martha  Bardell,  his  landlady,  the  "relict 
and  sole  executrix  of  a  deceased  custom-house  officer,  was 
a  comely  woman  of  bustling  manners  and  agreeable  ap- 
pearance, with  a  natural  genius  for  cooking,  improved  by 
study  and  long  practice  into  an  exquisite  talent." 

If  the  narrative  of  Pickwick's  conversation  with  Mrs. 
Bardell  is  to  be  accepted  as  true,  that  lady  might  well 
have  understood  it  as  a  proposition  of  marriage.  "Oh 
you  kind,  good,  playful  dear,"  said  Mrs.  Bardell,  as  she 
flung  her  arms  about  Mr.  Pickwick's  neck,  with  a  cata- 
ract of  tears  and  a  chorus  of  sobs;  (although  how  one 
person  could  execute  a  chorus  is  hard  to  understand.) 
"Bless  my  soul,"  cried  the  astonished  Mr.  Pickwick  — 
"Mrs.  Bardell,  my  good  woman;  dear  me,  what  a  situa- 
tion —  pray  consider  —  Mrs.  Bardell,  don't  —  if  any- 
body should  come."  Unfortunately  somebody  did  come, 
for  at  that  moment  Tupman,  Winkle  and  Snodgrass 
entered  the  room  and  beheld  their  chief  supporting  Mrs. 
Bardell  in  his  arms.    The  situation  was,  to  say  the  least, 


42  The  Law  and  Lawyers 

awkward,  and  Pickwick's  explanation  still  more  awkward, 
so  that  Sam  Weller's  entrance  was  very  welcome  to  Pick- 
wick, who  at  once  engaged  him  in  a  capacity  in  which  he 
would  have  "change  of  air,  plenty  to  see,  and  little  to  do, 
which  suited  his  complaint  uncommon." 

The  scene  shifts  to  Eatanswill,^  which  has  been  identi- 
fied as  Ipswich,  and  there  Pickwick  participated  in  the 
election  and  attended  Mrs.  Leo  Hunter's  Fete  Champetre 
and  has  his  exciting  adventure  in  the  young  ladies' 
boarding  school  at  Bury  St.  Edmunds,  as  a  result  of 
which  he  spends  three  days  in  bed  with  the  rheumatism. 
Just  as  he  rallies  he  is  handed  a  letter,  which  he  found 
worth  reading,  although  its  perusal  doubtless  did  not  tend 
to  restore  his  nerves,  now  greatly  shattered  by  pain  and 
exposure : 

"Freeman's  Court,  Cornhill,  August  28,  1827. 
''Bar dell  against  Pickwick. 
"Sir:— 

"Having  been  instructed  by  Mrs.  Martha  Bardell  to 
commence  an  action  against  you  for  a  breach  of  promise 
of  marriage,  for  which  the  plaintiff  lays  her  damages  at 
fifteen  hundred  pounds,  we  beg  to  inform  you  that  a  writ 
has  been  issued  against  you  in  this  suit,  in  the  Court  of 
Common  Pleas;  and  request  to  know,  by  return  of  post, 
the  name  of  your  attorney  in  London,  who  will  accept 
service  thereof.    We  are.  Sir, 

"Your  obedient  servants, 

"Dodson  &  Fogg. 
"Mr.  Samuel  Pickwick." 

"Mercy  on  us!"  said  Mr.  Pickwick,  "What's  this?  It 
must  be  a  jest;   it  —  it  can't  be  true.     It's  a  conspiracy. 

^  Pott,  the  editor  of  the  Eatanswill  Gazette,  consults  the  files  of  that 
paper  for  1828,  so  the  year  could  not  have  been  1827. 


Of  Pickwick  43 

Ridiculous."  Getting  little  comfort  from  his  triumvirate 
of  friends  who  reminded  him  of  the  recent  embarrassing 
occurrence,  or  from  Wardle,  who  calls  him  a  sly  dog,  Pick- 
wick forms  the  idiotic  resolve  to  interview  the  plaintiff's 
attorneys  in  person,  but  prepares  for  the  event  by  going 
with  the  shooting  party  on  Captain  Boldwig's  preserves, 
where  he  got  gloriously  drunk  and  woke  up  in  the  village 
pound  where  Boldwighas  deposited  him  like  a  stray  beast. 
The  office  of  Dodson  &  Fogg  was  the  ground  floor  front 
of  a  dingy  house  at  the  very  furthest  end  of  Freeman's 
Court,  Cornhill,  and  the  clerk's  office  was  a  dark,  mouldy, 
earthy-smelling  room  with  a  couple  of  old  wooden  chairs, 
a  very  loud-ticking  clock,  an  almanack,  an  umbrella 
stand,  a  row  of  hat  pegs,  bundles  of  dirty  papers,  some 
old  boxes  and  decayed  ink  bottles  of  various  shapes  and 
sizes.  Here  Pickwick  presented  himself  on  September 
3,  1830  (for  the  date  of  the  letter  quoted  is  certainly  wrong 
by  three  years),  and  after  waiting  a  suitable  number  of 
minutes  was  ushered  into  the  private  room  of  Mr.  Fogg, "an 
elderly,  pimply-faced  vegetable-diet  sort  of  man  in  a  black 
coat,  dark  mixture  trousers  and  small  black  gaiters,  who 
seemed  to  be  an  essential  part  of  the  desk  at  which  he  was 
writing  and  to  have  about  as  much  thought  or  feeling." 
Fogg,  cautiously,  would  not  begin  the  interview  until 
Dodson  appeared,  a  plump,  portly,  stern-looking  man, 
with  a  loud  voice,  and  thus  out-numbering  poor  Pick- 
wick two  to  one,  they  proceeded  to  bully  him  and  actually 
serve  him  with  a  copy  of  the  writ,  showing  him  the  origi- 
nal.^ Pickwick  boiled  with  rage  and  called  the  lawyers 
swindlers.  This  was  just  what  they  wanted  and  they 
called  the  clerks  to  witness,  as  Pickwick  threatened  to 
assault  them.  The  prospective  suit  for  damages,  how- 
ever, was  avoided  by  the  promptness  of  Sam  Weller. 

^  Chitty's  Archbold's  Practice,  114.     Sellon's  Practice,  95. 


44  The  Law  and  Lawyers 

"Battledore  and  shuttlecock's  a  wery  good  game," 
said  Sam,  "vhen  you  ain't  the  shuttlecock  and  two  law- 
yers the  battledores,  in  vich  case  it  gets  too  excitin' 
to  be  pleasant." 

"Sam,"  said  Mr.  Pickwick,  "I  will  go  immediately  to 
Mr.  Perker's.'  " 

"That's  just  exactly  the  wery  place  vere  you  ought  to 
have  gone  last  night,"  rephed  Mr.  Weller.  Mr.  Pickwick 
felt  the  need  of  a  drink  of  something  hot,  but  as  he  remem- 
bered (perhaps)  Lord  Coke's  dictum  in  4  Inst.  57,  that 
"hot  water  spoils  the  stomach,"  he  mixed  it  with  brandy 
and  then  betook  himself  to  Perker's  chambers,  at  Gray's 
Inn;  but  he  must  have  spent  an  unconscionable  time  at 
the  tavern,  for  our  veracious  narrative  states  that  his 
visit  to  Dodson  &  Fogg  was  in  the  morning  and  that  by 
the  time  he  reached  Gray's  Inn  it  was  eight  o'clock.  In 
those  old  times  this  appeared  to  be  the  regular  hour  for 
lawyers  to  close  their  offices,  as  appeared  from  the  un- 
broken stream  of  legal  gentlemen  that  met  him  in  muddy 
highlows,  soiled  white  hats,  and  rusty  apparel.  Perker 
had  gone,  and  Lowten,  his  clerk,  was  at  the  Magpie  and 
Stump,  singing  comic  songs.  Then  old  Jack  Bamber  told 
about  the  Inns  of  Court  and  their  "lonely  rooms,  where 
young  men  shut  themselves  up  and  read  and  read,  hour 
after  hour  and  night  after  night,  till  their  reason  wandered 
beneath  their  midnight  studies.  How  many  vain  pleaders 
for  mercy  do  you  think  have  turned  away  heart-sick 
from  the  lawyer's  office  to  find  a  resting  place  in  the 
Thames  or  a  refuge  in  the  gaol?  They  are  no  ordinary 
houses,  those.  There  is  not  a  panel  in  the  old  wain- 
scotting  but  that,  if  it  were  endowed  with  the  powers  of 
speech  and  memory,  could  start  from  the  wall  and  tell 
its  tale  of  horror." 

Dickens  then,  in  the  story  of  the  Queer  Client,  undoubt- 
edly draws   from   his  own   childish   experience   of   the 


Of  Pickwick  45 

Marshalsea,  where  on  Sundays  he  used  to  visit  his  father, 
a  prisoner  for  debt.  "It  may  be  my  fancy  or  it  may  be 
that  I  cannot  separate  the  place  from  the  old  recollections 
associated  with  it,  but  this  part  of  London  I  cannot  bear. 
The  streets  around  are  mean  and  close,  poverty  and 
debauchery  lie  festering  in  the  crowded  alleys,  want  and 
misfortune  are  pent  up  in  the  narrow  prison.  Twenty 
years  ago  that  pavement  was  worn  with  the  footsteps 
of  a  mother  and  child  who  day  by  day  presented  them- 
selves at  the  prison  gate.  No  expression  of  interest  or 
amusement  lighted  up  its  thin  and  sickly  face.  His 
recollections  were  few  enough,  but  they  were  all  of  one 
kind,  all  connected  with  the  poverty  and  misery  of  his 
parents.  The  hard  realities  of  the  world,  with  many 
of  its  worst  privations  —  hunger  and  thirst,  and  cold 
and  want  —  had  all  come  home  to  him ;  and  though  the 
form  of  childhood  was  there,  its  light  heart,  its  merry 
laugh  and  sparkling  eyes  were  wanting." 

Lowten,  a  pufify-faced  young  man,  drew  a  chair  "close 
to  Mr.  Pickwick  in  an  obscure  corner  of  the  room  and 
listened  attentively  to  his  tale  of  woe."  Dodson  &  Fogg's 
sharp  practice  excited  his  professional  admiration. 
"Capital  men  of  business  is  Dodson  &  Fogg,"  was  the 
eulogy  of  Lowten,  who,  in  the  absence  from  town  of  his 
principal,  promised  "to  do  the  needful"  for  Pickwick. 

Feeling  as  all  good  clients  should  that  having  handed 
over  his  case  to  the  lawyer  "to  do  the  needful,"  the 
responsibility  of  the  case  was  shifted  to  other  shoulders, 
Pickwick  went  to  the  Great  White  Horse  Inn,  at  Ipswich, 
and  with  a  fatality  which  seemed  to  attend  him  wherever 
the  ladies  were  concerned,  had  the  famous  adventure 
with  Miss  Witherfield,  better  known  as  the  Lady  in  the 
Yellow  Curl  Papers.  This  involved  him  the  next  morn- 
ing in  a  quarrel  with  Mr.  Peter  Magnus,  the  lady's  fiance, 
when  the  latter  on  introducing  Mr.  Pickwick  m/^ow/  the 


46  The  Law  and  Lawyers 

horrors  of  his  night  cap  to  Miss  Witherfield  without 
her  yellow  curl  papers,  finds  that  they  have  met  before, 
but  where,  the  lady  says  she  would  not  reveal  for  worlds. 
So  enraged  was  Mr.  Magnus  on  hearing  this  that  the 
middle-aged  lady  made  up  her  mind  that  it  was  the  duty 
of  the  gentlemen  to  engage  forthwith  in  a  duel,  and  that 
it  was  her  duty  to  prevent  it  by  informing  George  Nup- 
kins,  Esquire,  the  Mayor  of  Ipswich.  As  duelling  was 
regarded  by  that  magistrate  as  a  "gross  infringement 
of  His  Majesty's  prerogative,  expressly  stipulated  in 
Magna  Charta,  and  one  of  the  brightest  jewels  in  the 
British  Crown,  wrung  from  His  Majesty  by  the  Political 
Union  of  Barons,"  warrants  were  at  once  issued  for  the 
arrest  of  Messrs.  Pickwick  and  Tupman,  although  Pick- 
wick had  no  more  idea  of  fighting  a  duel  than  he  had  of 
marrying  Miss  Witherfield. 

Grummer,  the  constable  who  arrested  Pickwick  and 
Tupman,  was  "an  elderly  man  in  top  boots  and  remark- 
able for  a  bottle  nose,  a  hoarse  voice,  a  snuff-colored 
surtout  and  a  wandering  eye."  Grummer,  with  his 
satellite  Dubbley,  a  dirty-faced  man  over  six  feet  tall, 
apprehended  Mr.  Pickwick  at  dinner,  despite  Snod- 
grass's  objection  that  "this  is  a  private  room."  Mr. 
Grummer  shook  his  head.  "No  room's  private  to  His 
Majesty  when  the  street  door's  once  passed.  That's  law. 
Some  people  maintains  that  an  Englishman's  house  is 
his  castle.  That's  gammon."  Mr.  Grummer  referred, 
of  course,  to  the  well-known  doctrine  of  Semaynes  case, 
5  Co.  91  b,  as  to  which  a  modern  commentator,  Mr. 
Dooley,  of  Chicago,  has  observed,  "An  American's  home, 
as  wan  iv  th'  potes  says,  is  his  castle  —  till  th'  morgedge 
falls  due."  In  charge  of  these  representatives  of  the 
law,  and  escorted  by  the  entire  youthful  population  of 
Ipswich,  the  Pickwickians  were  brought  before  the  Mayor 
who  sat  in  front  of  a  big  bookcase  in  a  big  chair,  behind 


Of  Pickwick  47 

a  big  table  and  before  a  big  volume.  The  hearing  was 
amusing,  for  Dickens  had  evidently  in  mind  some  bom- 
bastic and  ignorant  Justice,  whose  court  he  had  attended. 
Fortunately,  Pickwick  was  able  privately  to  inform  the 
Mayor  that  he  had  received  as  a  friend,  Alfred  Jingle, 
masquerading  as  Captain  Fitz-Marshall,  and  thus 
obtained  an  honorable  discharge. 

On  his  return  to  London,  Pickwick,  we  may  be  sure, 
did  not  go  to  his  old  lodgings  in  Goswell  Street,  but  took 
up  his  abode  in  "very  good  old-fashioned  and  comfortable 
quarters,  to  wit,  the  George  and  Vulture  Tavern,  Lom- 
bard Street,"  and  immediately  sent  Sam  with  a  full 
quarter's  rent  to  give  a  month's  notice  to  Mrs.  Bardell, 
so  as  to  terminate  his  tenancy,  and  to  bring  back  his 
"things"  which  he  had  left  in  the  Goswell  Street  house. 

When  Sam  called,  Mrs.  Bardell,  Mrs.  Cluppins  and 
Mrs.  Sanders  were  engaged  in  a  little  tea  party,  and  when 
Mr.  Pickwick's  man  was  announced  — 

"Now  what  shall  I  do?"  said  Mrs.  Bardell  to  Mrs. 
Cluppins. 

"/  think  you  ought  to  see  him,"  replied  Mrs.  Cluppins. 
"But  on  no  account  without  a  witness." 

"/  think  two  witnesses  would  be  more  lawful,"  said 
Mrs.  Sanders,  who  Hke  the  other  friend  was  bursting 
with  curiosity  and  apparently  familiar  with  the  "two 
witness"  rule  of  the  civil  law. 

So  Sam  chatted  with  the  ladies,  drank  a  toast,  "Suc- 
cess to  Bardell  against  Pickwick,"  and  obtained  in  the 
course  of  conversation  after  the  wine  the  highly  interesting 
information  that  Dodson  &  Fogg  had  taken  the  case 
entirely  on  speculation. 

Then  they  all  went  to  Dingley  Dell,  for  the  Christmas 
festivities,  and  there  Bella  and  Trundle  were  married, 
and  Winkle  danced  with  the  black-eyed  young  lady  with 
fur  round  the  top  of  her  boots,  and  Pickwick  under  the 


48  The  Law  and  Lawyers 

mistletoe  kissed  the  old  lady  in  the  lavender-colored  silk 
dress,  and  all  the  girls  kissed  Mr.  Pickwick,  and  the  fat 
boy  kept  on  eating  pies,  and  after  all  this  fun  the  Pick- 
wickians  went  up  to  town  to  prepare  for  the  trial  of  Bar- 
dell  V.  Pickwick. 

But  they  found  the  enemy  was  also  preparing.  Mr. 
Jackson,  of  Dodson  &  Fogg,  "an  individual  in  a  brown 
coat  with  brass  buttons,  with  long  hair  and  soiled  drab 
trousers,"  called  with  a  subpoena  which  he  served  upon 
each  of  Pickwick's  three  friends  and  Sam  Weller,  with 
a  shilling  apiece  as  a  fee.  Pickwick  slept  little  that 
night;  his  memory  had  received  a  very  disagreeable 
refresher,  and  so  he  started  early  the  next  morning  with 
Sam,  for  Perker's  office. 

"This  action,  Sam,"  said  Mr.  Pickwick,  "is  expected 
to  come  on,  on  the  fourteenth  day  of  next  month." 

"Remarkable  coincidence,  that  'ere,  sir,"  said  Sam. 

"Why  remarkable,  Sam?"  enquired  Mr.  Pickwick. 

"Walentine's  Day,  sir,"  responded  Sam;  "regular 
good  day  for  a  breach  o'  promise  trial." 

Mr.  Weller's  smile  awakened  no  gleam  of  mirth  in  his 
master's  countenance,  and  they  proceeded  to  Perker's 
office,  where  they  found  Lowten  driving  away  a  persistent 
client,  a  miserable  looking  man  in  boots  without  toes 
and  gloves  without  fingers.  "There  never  was  such  a 
pestering  bankrupt  as  that,  since  the  world  began,  I  do 
believe!"  said  Lowten,  with  the  air  of  an  injured  man. 
"His  affairs  haven't  been  in  Chancery  quite  four  years 
yet,  and  I'm  damned  if  he  don't  come  worrying  here 
twice  a  week." 

"Well,"  said  Perker,  after  a  professional  tribute  to 
the  smartness  of  Dodson  &  Fogg,  "we've  done  every- 
thing that's  necessary.  I  have  retained  Serjeant 
Snubbin." 

"Is  he  a  good  man?"  enquired  Mr.  Pickwick. 


Of  Pickwick  49 

"Good  man!"  replied  Perker;  "Bless  your  heart  and 
soul,  my  dear  sir,  Serjeant  Snubbin  is  at  the  very  top  of 
his  profession,  engaged  in  every  case.  We  say,  we  of  the 
profession,  that  Serjeant  Snubbin  leads  the  Court  by 
the  nose."  (Snubbin,  by  the  way,  is  said  to  have  been 
intended  for  Serjeant  Arabin.)  Perker  is  not  very 
encouraging  to  his  client.  "We  have  only  one  course 
to  adopt,  my  dear  sir,  cross-examine  the  witnesses,  trust 
to  Snubbin's  eloquence,  throw  dust  in  the  eyes  of  the 
judge,  and  ourselves  on  the  jury."  Pickwick,  being  an 
old  bachelor,  had  not  acquired  that  habit  of  unques- 
tioning obedience  to  the  will  of  a  superior  intelligence 
which  in  time  assumes  the  rank  of  a  virtue;  indeed, 
Perker  had  already  complained  that  Pickwick,  like 
many  a  client  we  have  known,  had  insisted  upon 
managing  his  own  case.  But  now  Pickwick,  follow- 
ing the  "crooked  cord  of  private  opinion,"  made 
up  his  mind  that  he  must  have  a  personal  consultation 
with  Serjeant  Snubbin,  and  after  overruling  his  attor- 
ney's objections  they  went  to  the  Serjeant's  office  in 
Lincoln's  Inn,  Old  Square.  Mr.  Serjeant  Snubbin  was 
a  lantern-faced,  sallow-complexioned  man  about  forty- 
five  or  fifty  years  of  age.  He  had  a  dull  looking  boiled 
eye,  his  hair  was  thin  and  weak,  he  wore  an  ill 
washed  and  worse  tied  white  neckerchief,  and  the 
slovenly  style  of  his  dress  and  his  dirty  office  showed 
that  he  was  far  too  much  occupied  to  take  any  heed  of 
his  personal  comforts.  Now  Mr.  Pickwick,  with  Perker's 
assistance,  stated  his  ridiculous  purpose  in  calling  upon 
his  counsel,  namely,  that  there  was  no  ground  for 
Mrs.  Bardell's  action,  that  he  was  conscious  he  was 
in  the  right  and  that,  unless  Snubbin  believed  this, 
"I,"  said  Mr.  Pickwick,  "would  rather  be  deprived 
of  the  aid  of  your  talents  than  have  the  advantage 
of  them." 


50  The  Law  and  Lawyers 

Not  only  did  Pickwick  make  this  wholly  unnecessary 
declaration  to  his  counsel,  but  he  also  made  some  remarks 
about  the  conduct  of  his  case  before  a  jury,  which,  to 
say  the  least,  were  gratuitous. 

"Gentlemen  of  your  profession,  sir,"  continued  Mr. 
Pickwick,  "see  the  worst  side  of  human  nature  —  all  its 
disputes,  all  its  ill  will  and  bad  blood  rise  up  before  you. 
You  know  from  your  experience  of  juries  how  much 
depends  on  effect,  and  you  are  apt  to  attribute  to  others 
a  desire  to  use  for  purposes  of  deception  and  self-interest 
the  very  instruments  which  you,  in  pure  honesty  and 
honour  of  purpose  and  with  a  laudable  desire  to  do  your 
utmost  for  your  client,  know  the  temper  and  worth  of 
so  well,  from  constantly  employing  them  yourselves.'' 

Mr.  Serjeant  Snubbin  made  no  reply  whatever  to 
Pickwick's  extraordinary  harangue,  but  rather  snappishly 
directed  that  his  junior,  Mr.  Phunkey,  be  summoned, 
and  relapsed  into  abstraction  until  he  came;  and  then 
having  introduced  his  client,  told  Phunkey  to  "take 
Mr.  Pickwick  away."     So  ended  the  consultation. 

If  the  senior  Weller  had  then  been  called  on  for  an 
opinion  he  doubtless  would  have  proffered  his  well- 
known  advice  as  to  the  two  and  only  two  defenses, 
"character  and  an  alleybi."  "I've  got  some  friends," 
said  he,  "as'll  do  either  for  him,  but  my  advice  'ud  be 
this  here  —  never  mind  the  character,  and  stick  to  the 
alleybi.  Nothing  like  an  alleybi,  Sammy,  nothing." 
Indeed,  had  Mr.  Pickwick  made  the  acquaintance  of  the 
elder  Weller  at  an  earlier  date,  Weller,  as  an  old  matri- 
monial hand,  would  then  have  given  him  the  warning 
which  came  too  late.  "You're  never  safe  with  'em,  Mr. 
Pickwick,  ven  they  vunce  has  designs  on  you;  there's 
no  knowin'  vere  to  have  'em  and  vile  you're  a  con- 
siderin'  of  it  they  have  you.  I  was  married  fust  that 
vay   myself,    and    Sammy   wos   the   consekens   o'    the 


Of  Pickwick  51 

manoover."  The  caution  is  not  unlike  that  given  by 
Emerson,  our  American  philosopher,  in  his  Conduct  of 
Life.  "We  are  not  very  much  to  blame  for  our  bad 
marriages.  We  live  amid  hallucinations,  and  this  espe- 
cial trap  is  laid  to  trip  up  our  feet  with  and  all  are  tripped 
up  first  or  last." 

The  trial  took  place  on  Valentine's  Day,  at  the  Guild- 
hall, and  was  presided  over  by  Mr.  Justice  Stareleigh 
(who  is  supposed  to  have  been  intended  for  Sir  Stephen 
Gaselee),  "a  particularly  short  man  and  so  fat  that  he 
seemed  all  face  and  waistcoat."  We  will  pass  over, 
somewhat  hurriedly,  the  report  of  this  celebrated  trial, 
as  it  is  one  of  the  best  known  scenes  in  English  fiction, 
and  familiar  to  every  one.'  The  jury  was  called  and 
among  them  was  a  chemist,  or  druggist  as  we  should 
say,  who  asked  to  be  excused  because  there  was  no  one 
in  charge  of  his  shop  but  an  errand  boy  who  thought 
Epsom  salts  meant  oxalic  acid,  and  syrup  of  senna, 
laudanum.  It  is  more  than  likely  that  Dickens  had  in 
mind  the  case  of  Rex  v.  Terrymond,  1  Lewin  Crown  Cases 
169,  where  a  chemist's  apprentice  was  tried  for  man- 
slaughter, in  1828,  for  causing  the  death  of  an  infant  by 
negligently  delivering  laudanum  for  paregoric.  The 
apprentice  was  convicted  and  fined  £5.  Opposed  to 
Serjeant  Snubbin  and  Mr.  Phunkey  were  Serjeant  Buz- 
fuz  (who  is  supposed  to  be  Serjeant  Bompas),  and  Mr. 
Skimpin,  a  promising  young  man  of  two  or  three  and 
forty;  the  former  of  whom  opened  the  case  with  his 
famous  speech  and  then  produced  Mrs.  Cluppins,  who 
testified  to  the  occurrences  of  that  fatal  July  morn- 
ing.    Pickwick,  interfering  as  usual,  of  course,  actually 

^  Serjeant  Talfourd  is  said  to  have  assisted  Dickens  in  the  legal 
points  of  the  trial,  and  Serjeant  Buzfuz's  great  speech  is  said  to 
have  been  founded  upon  an  actual  case,  2  Atlay's  Victorian 
Chancellors  163. 


52  The  Law  and  Lawyers 

forbade  his  counsel  to  cross-examine  and  instructed  him 
to  say  that  the  account  was  in  substance  correct.    Then 
by  a  bold  stroke  Buzfuz  called  from  the  enemy's  camp, 
Mr.  Winkle,  who  gave  his  name  as  Nathaniel. 
"Daniel,"  wrote  the  judge.     "Any  other  name?" 
"Nathaniel,  sir, —  my  Lord,  I  mean." 
"Nathaniel  Daniel  or  Daniel  Nathaniel?" 
"No,  my  Lord,  only  Nathaniel,  not  Daniel  at  all." 
"What  did  you  tell  me  it  was  Daniel  for,  then,  sir?" 
inquired  the  Judge. 

"I  didn't,  my  Lord,"  replied  Mr.  Winkle. 
"You  did,  sir,"  said  the  Judge,  with  a  severe  frown. 
"How  could  I  have  got  Daniel  on  my  notes  unless  you 
told  me  so,  sir?  "  This  argument  was  of  course  unanswer- 
able, and  the  Judge  had  the  authority  of  Lord  Coke,  who 
remarked  in  Floyd  &"  Barker's  case,  12  Rep.  26,  "Absur- 
dum  est  affirmare  {re  judicata)  credendum  esse  non  judici." 
I  remember  hearing  one  of  our  Common  Pleas  Judges  in 
Philadelphia  (now  deceased)  say  exactly  the  same  thing. 
Mr.  Skimpin  proceeded  to  cross-examine  his  own  witness, 
without  the  slightest  objection  from  Snubbin,  and  when 
the  latter's  turn  came  for  cross-examination  he  entrusted 
that  delicate  matter  to  Mr.  Phunkey,  who  was  without 
any  experience  and  actually  brought  to  light  the  episode 
of  Pickwick  and  the  Lady  in  the  Yellow  Curl  Papers. 

Tupman  and  Snodgrass  were  the  next  witnesses  and 
both  corroborated  their  unhappy  friend ;  then  Mrs.  Susan- 
nah Sanders  was  examined  by  Buzfuz,  but  this  time 
Snubbin  did  the  cross-examination  himself.  Buzfuz, 
emboldened  by  his  success,  made  his  only  mistake.  He 
called  Sam  Weller,  who  seized  the  opportunity,  in  answer 
to  an  entirely  incompetent  question,  to  tell  the  jury  of 
his  conversation  with  Mrs.  Bardell  and  her  friends,  in 
reference  to  Dodson  &  Fogg.  "Yes,"  said  Sam,  "they 
said  what  a  wery  gen'rous  thing  it  was  o'  them  to  have 


Of  Pickwick  53 

taken  up  the  case  on  spec  and  to  charge  nothin'  at  all 
for  costs  unless  they  got  'em  out  of  Mr.  Pickwick." 

Sam's  examination  called  for  a  judicial  ruling  on 
evidence.  He  admitted  that  he  was  in  Pickwick's 
service. 

"Little  to  do,  and  plenty  to  get,  I  suppose?"  said  Ser- 
jeant Buzfuz,  with  jocularity. 

"Oh,  quite  enough  to  get,  sir,  as  the  soldier  said 
ven  they  ordered  him  three  hundred  and  fifty  lashes," 
replied  Sam. 

"You  must  not  tell  me  what  the  soldier  or  any 
other  man  said,  sir,"  interposed  the  Judge:  "it's  not 
evidence."  ^ 

Snubbin,  undoubtedly  at  the  instance  of  his  client,  then 
stated,  "to  save  the  examination  of  another  witness," 
that  Mr.  Pickwick  had  retired  from  business  and  was  a 
gentleman  of  considerable  independent  property.  As 
this  left  a  pretty  safe  margin  for  the  jury  to  guess  at  the 
damages,  you  may  be  sure  Buzfuz  had  no  objection  and 
closed  his  case.  Snubbin  offered  no  testimony,  and  at  once 
went  to  the  jury.  The  Judge  delivered  a  jelly-fish  charge, 
the  jury  retired  and  came  back  in  just  fifteen  minutes, — 
a  very  bad  quarter  of  an  hour  for  Pickwick,  who  put  on 
his  spectacles  and  "gazed  at  the  foreman  with  an  agitated 
countenance  and  a  quickly  beating  heart,"  which  prob- 
ably stopped  beating  altogether  when  he  heard  the  jury 
give  their  verdict  for  the  plaintiff,  with  damages  in  the 
sum  of  seven  hundred  and  fifty  pounds.  If  Pickwick 
had  been  learned  in  the  law  he  might  have  congratulated 
himself  that  the  Ecclesiastical  Courts  had  no  longer 
jurisdiction  to  compel  specific  performance  of  the  contract 


^  The  ruling  is  cited  in  Taylor  on  Evidence,  567,  but  apparently 
the  case  is  not  referred  to  by  Mr.  Wigmore  in  his  work  on  Evidence. 
If  so  it  is  the  only  reported  decision  which  he  has  failed  to  cite. 


54  The  Law  and  Lawyers 

to  marry;  as  it  was,  he  immediately  announced  his 
determination  never  to  pay  a  farthing  of  cost  or  damages, 
even  if  he  should  spend  the  rest  of  his  Hfe  in  prison,  and 
having  learned  that  execution  could  not  issue  until  the 
next  term,  at  the  expiration  of  two  months,  resolved  to 
enjoy  his  breathing  spell  at  Bath,  for  which  they  took 
the  "Moses  Pickwick"  coach  the  next  morning. 

Trinity  Term  commenced,  Pickwick  returned  to  Lon- 
don, and  it  is  worth  while  to  observe  that  Snubbin  and 
Perker  so  felt  the  hopelessness  of  their  case  that  they  did 
not  even  move  for  a  new  trial.  Dodson  &  Fogg  lost  no 
time  in  issuing  an  execution  against  the  body  of  Samuel 
Pickwick,  who  was  arrested  in  his  bed-room  at  the  George 
and  Vulture.  Namby,  the  sheriff's  officer,  a  man  dressed 
in  a  particularly  gorgeous  manner,  with  plenty  of  jewelry, 
called  at  nine  in  the  morning,  when  Pickwick,  who  was 
not  fond  of  early  rising,  was  yet  asleep.  He  was  hurried 
through  the  sordid  details  of  the  toilet  and  then  taken 
without  breakfast  by  his  captor  to  his  sponging  house,  in 
Bell  Alley,  Coleman  Street.  Here  defendants  were  allowed 
a  respite  in  the  custody  of  the  sheriff's  officers  before  going 
to  prison,  in  order  that  they  or  their  friends  might  have 
a  chance  to  pay  the  judgment.  Perker,  who  had  been 
sent  for,  urged  him  to  do  this,  but  Pickwick  as  usual 
was  obstinate  and  declared  he  would  go  to  prison  that 
night. 

"You  can't  go  to  Whitecross  Street,  my  dear  sir,"  said 
Perker.  "Impossible!  There  are  sixty  beds  in  a  ward  and 
the  bolt's  on  sixteen  hours  out  of  the  twenty-four.  You 
can  go  to  the  Fleet,  my  dear  sir,  if  you're  determined  to 
go  somewhere."  Now  if  a  defendant  in  the  custody  of  the 
sheriff  wanted  to  be  committed  to  the  Fleet  he  could  do  it 
by  means  of  a  Habeas  corpus  cum  causa,  which  writ  oper- 
ated to  remove  the  body  of  the  prisoner  and  the  whole 
cause.     The  writ  issued,   as  of   course,   was  returnable 


Of  Pickwick  55 

immediately,  and  in  obedience  to  it  the  sheriff's  officer 
brought  the  defendant  to  the  Judge  in  chambers,  who 
signed  the  commitment.  The  practice,  as  stated  by 
Dickens,  seems  to  be  accurate  according  to  the  books  ;^ 
the  proceedings  in  the  Judge's  chambers,  the  office  boys 
and  clerks,  etc.,  are  so  lifelike  that  they  were  no  doubt 
drawn  from  his  own  experience. 

The  Fleet  Prison  was  destroyed  about  1846.  For  nearly 
a  millennium,  to  use  the  word  in  a  very  inappropriate  con- 
nection, this  prison  had  existed  as  an  institution  so  horri- 
ble as  to  be  almost  picturesque.  Here  were  gathered  the 
poor  debtors  taken  in  execution  according  to  the  old  rule, 
Qui  non  habet  in  aere,  luet  in  corpore,  and  put  in  the  charge 
of  the  Warden  of  the  Fleet,  who  was  answerable  either 
for  the  body  of  the  debtor  or  the  debt  that  he  owed.  The 
Warden  made  his  profit  from  the  fees  he  was  able  to 
exact  from  the  wretched  inmates,  and  somewhat  resembled 
the  landlord  of  a  hotel  from  which  his  unhappy  guests 
could  find  no  escape.  Indeed  the  wardenship  was  a 
lucrative  vested  interest,  an  estate  saleable  and  inherit- 
able like  a  manor.  The  debtor,  with  his  hopes  abandoned 
and  his  ambitions  forgotten,  was  worse  off  than  a  crimi- 
nal, for  the  felon  could  serve  out  his  term.  He  was  worse 
off  than  a  pauper,  for  the  law  made  no  provision  for  his 
support.  Nor  could  the  creditor,  if  so  disposed,  release 
his  debtor  without  cancelHng  his  debt,  and  could  only 
hope  that  the  debtor's  family  or  friends  would  pay  that 
debt  and  procure  the  discharge.  The  debtor  too  often 
became  a  lost  and  forgotten  man,  penniless  and  destitute 
except  so  far  as  the  poor  box  rattled  at  the  gate  and  the 
cry  of  "Pity  the  poor  prisoners"  aroused  the  compassion 
of  the  charitable  wayfarer.    And  yet  Newgate  and  the 

12  Chitty's  Archbold,  941.  Mr.  Fitzgerald  in  his  "Bozland"  is 
very  much  puzzled  by  the  proceeding. 


56  The  Law  and  Lawyers 

Compter  ^  of  London  were  reputed  to  be  still  worse  and 
the  wretches  confined  in  them  from  early  times  endeav- 
ored to  obtain  their  transfer  by  the  simple  legal  fiction 
of  confessing  themselves  debtors  to  the  king,  for  whom 
the  Fleet  was  the  appropriate  prison.^ 

The  law  of  imprisonment  for  debt  was  modified  in 
England  by  statute  in  1844,  and  finally  abolished  in 
1869,  at  least  theoretically;  but  the  County  Courts 
retain  the  power  to  imprison  debtors  as  for  contempt 
who  refuse  to  obey  their  judgments.  A  newspaper  has 
stated,  indeed,  that  in  1905  over  11,000  were  imprisoned 
for  this  cause.^ 

When  Pickwick  went  to  the  Fleet,  the  prison  had  been 
materially  improved  through  the  reforms  of  Howard, 
but  it  was  in  all  conscience  bad  enough,  for,  as  Coke 
says,  ''Career  est  mala  mansio;''  though  we  cannot  feel 
much  sympathy  for  a  man  who  could  escape  by  paying 
a  judgment  obtained  by  legal  process,  unjust  though  he 
felt  it  to  be.  He  certainly  was  introduced  to  very  unat- 
tractive society  by  Roker  when  he  spent  his  first  night 
with  Smangle  and  Mivins,  and  was  chummed  the  next 
day  with  the  drunken  chaplain,  the  disreputable  butcher, 
and  the  reprobate  blackleg. 

But  as  Perker  should  have  told  Pickwick,  who  found 
it  out  for  himself,  gold  and  silver,  those  "mute  but 
moving  ambassadors,"  were  inside  the  Fleet  pretty 
much  the  same  as  they  were  outside  of  it,  except  that 

1  The  Counter,  or  Compter,  of  London  (from  computare)  was  a  city 
prison  for  debtors  and  minor  offenders. 

2  (Economy  of  the  Fleete,  Camden  Society,  XII.  Cf.  Worlay  v. 
Harrison,  Dyer  249  b.  8  Eliz.  An  interesting  account  of  the  Lon- 
don prisons  about  this  time  is  contained  in  "Police  and  Crimes  of 
the  Metropolis"  [by  John  Wade,  London,  1829]. 

3  See  as  to  power  of  the  Court,  article  by  E.  Bowen-Rowlands, 
18  L.  Q.  R.  243  (1902). 


Of  Pickwick  57 

their  purchasing  power  was  not  quite  so  great.  When 
a  man  was  able  to  sequester  his  property  or  income  from 
his  creditors  he  could  live  in  the  Fleet  in  comparative 
comfort.  There  were  many  cases,  indeed,  of  persons 
who  became  used  to  the  place,  lost  their  friends,  con- 
tracted new  habits  of  sloth  and  carelessness,  and  actually 
refused  to  leave  the  prison  when  finally  the  opportunity 
came. 

"They  don't  mind  it,"  said  Sam,  "it's  a  regular  holi- 
day to  them,  all  porter  and  skittles.  It's  the  other 
vuns  as  gets  done  over  with  this  sort  o'  thing;  them 
downhearted  fellers  as  can't  svig  away  at  the  beer,  nor 
play  skittles  neither;  them  as  vould  pay  if  they  could 
and  gets  low  by  being  boxed  up.  Them  as  is  always  a 
idlin'  in  public  houses  it  don't  damage  at  all,  and  them 
as  is  always  a  vorkin'  ven  they  can,  it  damages  too 
much."  And  then  Sam  tells  the  story  of  the  dirty- 
faced  man  in  the  brown  coat,  a  prisoner  for  seventeen 
years,  who  was  allowed  to  go  out  by  the  turnkey  and 
one  night  got  back  just  in  time  to  be  locked  in.  The 
turnkey  threatened  if  he  did  not  keep  better  hours  to 
shut  him  out  altogether,  and  the  dirty-faced  man  was 
seized  with  a  violent  fit  of  trembling  and  never  went 
out  again. 

Now  there  was  a  Chancery  prisoner  who  had  been  in 
the  Fleet  long  enough  to  have  lost  friends,  fortune  and 
home,  and  to  have  acquired  a  right  to  a  separate  room. 
This  he  agreed  to  let  Pickwick  have  for  twenty  shillings 
a  week,  and  Pickwick  hired  some  furniture  for  twenty 
seven  and  six  pence  a  week  in  addition.  "As  they 
struck  the  bargain  Mr.  Pickwick  surveyed  the  prisoner 
with  a  painful  interest.  He  was  a  tall,  cadaverous  man 
in  an  old  great  coat  and  slippers,  with  sunken  cheeks  and 
a  restless,  eager  eye.  His  lips  were  bloodless  and  his 
bones  sharp  and  thin.     God  help  him,  the  iron  teeth  of 


58  The  Law  and  Lawyers 

confinement  and  privation  had  been  slowly  filing  them 
down  for  twenty  years."  ^ 

But  the  poor  side  of  the  prison  was  the  worst.  When 
Pickwick  looked  down  the  dark  and  filthy  staircase  which 
led  to  a  range  of  damp  and  gloomy  stone  vaults,  he  mis- 
took them  for  coal  cellars.  "You  don't  really  mean," 
said  he,  "that  human  beings  live  down  there  in  those 
wretched  dungeons?"  "Yes,"  replied  Mr.  Roker,  "and 
die  down  there  wery  often;  and  what  of  that?  Yes, 
and  a  wery  good  place  it  is  to  live  in,  ain't  it?" 

Now  Sam  Weller  had  no  intention  of  letting  Mr. 
Pickwick  live  in  the  Fleet  without  his  attendance,  and 
obtained  the  professional  aid  of  Mr.  Solomon  Pell,  who 
had  once  helped  Weller,  senior,  through  the  Insolvent 
Court.  This  learned  lawyer  was  a  fat,  flabby  man  in  a 
coat  which  looked  green  one  minute  and  brown  the  next. 
His  forehead  was  narrow,  his  face  wide,  his  head  large 
and  his  nose  on  one  side  of  his  head,  as  if  Nature  had 
given  it  an  angry  tweak.  "The  last  Lord  Chancellor," 
said  Pell,  "was  very  fond  of  me."  "Pell,"  said  the 
Chancellor  (who,  by  the  way,  must  have  been  Lord 
Eldon),  "no  false  delicacy,  Pell.  You're  a  man  of  talent, 
you  can  get  anybody  through  the  Insolvent  Court,  Pell, 
and  your  country  shall  be  proud  of  you."     "My  Lord," 

1  said,  "you  flatter  me."  "Pell,"  he  said,  "if  I  do  I'm 
damned." 

The  scheme  concocted  was  for  Weller,  senior,  to  lend 
Sam  twenty-five  pounds  on  a  confession  of  judgment, 
upon  which  execution  was  issued  at  once  by  Mr.  Pell, 
and  Sam  was  arrested  on  a  capias  and  committed  to 

^  But  some  of  the  Chancery  prisoners  held  lucrative  situations  in 
prison  and  one  solicitor  actually  practised  there  with  much  success. 

2  Atlay's  Lives  of  the  Victorian  Chancellors,  15.  Sir  Edward  Sug- 
den  exposed  Dickens's  ignorance  of  Chancery  procedure  and  the  Law 
of  Contempt  in  The  Times,  2  Atlay,  35. 


Of  Pickwick  59 

the  Fleet,  not  very  long  after  he  left  It  at  Mr.  Pickwick's 
command  and  very  much  to  the  astonishment  of  that 
gentleman. 

Pickwick  spent  three  months  in  the  Fleet,  and  toward 
the  close  of  July  those  sharp  practitioners,  Dodson  & 
Fogg,  turned  their  batteries  on  their  quondam  client 
Mrs.  Bardell.  "Just  as  a  matter  of  form"  they  had 
induced  her  after  the  trial  to  give  them  a  cognovit,  or 
confession  of  judgment,  for  their  costs,  and  when  they 
lost  hope  of  getting  anything  from  Pickwick,  they  entered 
up  judgment,  issued  execution,  and  Mrs.  Bardell  found 
herself  once  more  under  the  same  roof  as  her  old  lodger, 
Pickwick,  but  singularly  enough  was  taken  there  directly 
and  not  from  the  preliminary  custody  of  the  sheriff's 
officer.  Our  hero's  chivalry  was  aroused  and  once  more 
Perker  was  summoned.  Notwithstanding  Pickwick's 
habitual  obstinacy  he  finally  consented  to  take  Perker's 
advice.  Mrs.  Bardell  agreed  to  satisfy  her  judgment 
upon  Pickwick's  paying  to  Dodson  &  Fogg  their  costs, 
and  in  addition  she  signed  a  statement  that  the  suit  was 
from  the  beginning  brought  about  by  these  sharp  prac- 
titioners. These  costs  amounted  to  ;^133  .6.4,  which 
Dodson  &  Fogg  received  with  great  good  humor,  and 
the  jocular  remark  to  Pickwick  that  he  didn't  seem  to 
look  quite  so  stout  as  when  they  last  had  the  pleasure  of 
seeing  him.  What  Pickwick  had  to  pay  his  own  lawyers 
Dickens  does  not  tell  us,  but  presumably  as  much,  and 
in  view  of  his  extra  expenses  in  the  Fleet,  Mr.  Pickwick 
paid  altogether  perhaps  fifteen  hundred  dollars  or  more, 
and  spent  three  months  in  prison,  for  the  dubious  pleas- 
ure of  supporting  the  Widow  Bardell  in  his  arms  for  a 
fraction  of  a  minute. 

Perker  could  not  undertake  to  say  whether  the  evidence 
which  could  be  got  about  the  conduct  of  the  suit  would 
be  sufficient  to  justify  the  indictment  of  Dodson  &  Fogg 


60  The  Law  and  Lawyers 

for  conspiracy,  and  an  ingenious  writer  in  the  Cornhill 
Magazine  for  July,  1890,  has  made  a  most  able  and 
amusing  defence  of  Dodson  &  Fogg,  showing  that  these 
gentlemen  have  not  deserved  their  unhappy  reputation. 

There  is  one  more  legal  episode  in  Pickwick,  the  pro- 
bate of  Mrs.  Weller's  will  and  the  settlement  of  her  estate 
by  Mr.  Solomon  Pell.  The  will  was  written  on  a  dirty 
sheet  of  letter  paper  and  had  been  deposited  by  Mrs. 
Weller  in  the  little  black  teapot  on  the  top  shelf  of  the 
bar  closet,  at  the  Marquis  o'  Granby,  and  by  it  she  be- 
queathed £200  in  consols  to  Sam  and  all  the  residue  to 
her  husband,  whom  she  appointed  her  executor. 

What  right  Mrs.  Weller  had  at  the  date  of  the  story  to 
make  a  will  is  not  very  obvious,  as  before  the  Married 
Women's  Property  Act  of  1882,  a  married  woman  was 
unable,  generally  speaking,  to  make  a  will,  even  of  person- 
alty, for  her  chattels  belonged  to  her  husband,  and  natur- 
ally she  could  not  dispose  of  these  by  will  except  with  his 
consent.  Possibly  it  was  of  property  settled  to  Mrs.  Well- 
er's separate  use.^  But  an  unjust  law  can  always  be 
evaded.  Where  there  is  a  will  there  is  a  way,  and  as 
women  always  have  their  way  they  naturally  expect  to 
have  their  wills  also;  so  Mrs.  Weller  made  hers.  How- 
ever, under  the  circumstances,  it  seemed  to  make  so  little 
difference  that  Mr.  Weller,  having  read  it  to  Sam,  was 
on  the  point  of  putting  the  testamentary  paper  in  the 
fire,  but  Sam  insisted  on  a  more  formal  settlement  of  the 
estate.  Pell  undertook  the  probate.  The  first  thing  he 
did  was  to  demand  £5,  the  second  was  to  refresh  himself 
with  three  chops,  and  liquids  both  malt  and  spirituous, 
at  the  expense  of  the  estate,  and  then  the  will  was  proved 
at  Doctors'  Commons,  the  legacy  duty  paid,  the  business 
"good  vill,  stock  and  fixters"  sold,  the  inventory  taken, 

1  Jarman  on  Wills,  sec.  40. 


Of  Pickwick  61 

the  consols  transferred,  and  at  the  end  Mr.  Pell  remarked 
to  his  clients,  "You'll  find  my  terms  very  cheap  and  rea- 
sonable, and  no  man  attends  more  to  his  clients  than  I  do, 
and  I  hope  I  know  a  little  law  besides." 

Dickens  did  an  immense  amount  of  good  by  his  novels 
in  exposing  the  wrongs  and  cruelties  of  the  older  English 
law  and  the  inhumanity  of  the  existing  social  order.  Ridi- 
cule is  stronger  than  argument,  caricature  more  powerful 
than  a  bald  recital  of  sober  facts.  Ten  thousand  men  and 
women  read  his  accounts  of  life  in  the  Fleet,  and  the  hor- 
rors of  imprisonment  for  debt,  as  told  in  Pickwick,  for 
every  one  who  read  the  actual  facts,  often  much  more  dis- 
gusting, in  the  reports  and  the  works  of  legal  reformers ;  ^ 
and  without  much  doubt  these  farcical  Pickwick  Papers 
hastened  the  abolition  of  imprisonment  for  debt  and  the 
destruction  of  the  Fleet,  so  that  the  cause  of  humanity 
owes  much  to  his  humor  and  pathos.  Had  Dickens  pos- 
sessed greater  legal  training  and  a  mind  fitted  for  the 
requisite  technical  detail,  there  were  many  anomalies 
and  outgrown  antiquities  of  the  law  which  he  could  have 
demolished. 

It  would  have  been  easy  for  him  in  the  trial  of  Bardell 
V.  Pickwick  to  show  the  absurdity  and  the  injustice  of  the 
legal  rules  of  the  incompetency  of  parties  and  interested 
witnesses.  Mrs.  Bardell,  under  proper  cross-examination, 
might  have  exposed  the  weakness  of  her  case ;  Pickwick, 
if  allowed  to  testify,  would  have  shown  the  strength  of 
his  own,  provided  he  stood  the  test  of  cross-examina- 
tion. But  the  idea  seems  never  to  have  entered  Dickens's 
mind.^ 

^E.g.  Case  of  Huggins,  et  al.,  17  St.  Trials,  298. 

^  Although  now  the  testimony  of  the  parties  is  admissible  in  breach 
of  promise  cases,  yet  Parliament  by  Act  of  32  and  33  Vict.  c.  68, 
sec.  2,  required  that  it  be  corroborated  by  some  other  material  evi- 
dence in  support  of  the  promise. 


62  The  Law  and  Lawyers 

Now  there  is  a  sober  lesson  for  us  in  the  Pickwick 
Papers,  the  iniquity  of  speculative  agreements  as  to  costs 
and  fees  between  attorney  and  client.  We  have  all  read 
Sharswood's  Legal  Ethics,  and  none  can  read  what  that 
learned  and  upright  lawyer  has  written  and  fail  to  see 
how  the  practice  corrupts  and  degrades  the  profession, 
transforms  the  sworn  officer  of  the  Court  into  a  party 
litigating  his  own  claim,  destroys  the  dignified  relation 
of  attorney  and  client  by  making  them  mere  business 
partners  in  a  commercial  venture,  unduly  encourages 
litigation,  and  makes  the  lawyer  become  his  own  Satanic 
tempter. 

Whatever  was  the  exact  agreement  between  Mrs.  Bar- 
dell  and  Dodson  &  Fogg,  it  seems  clear  that  in  England 
it  was  either  entirely  void  as  against  public  policy,  or  at 
least  was  subject  to  the  supervisory  power  of  the  Court. ^ 
The  Act  of  33  and  34  Vict.  ch.  28,  provides  that  attorneys 
and  their  clients  may  contract  in  writing  for  the  payment 
of  fees  and  disbursements  in  respect  to  business  done  or  to 
be  done,  either  for  a  gross  sum  or  by  a  commission  or 
percentage,  hut  the  amount  payable  under  the  agreement 
cannot  be  received  by  the  attorney  until  the  contract  has 
been  examined  and  allowed  by  the  taxing  officer  of  the 
Court,  and  if  the  agreement  is  not  fair  and  reasonable 
the  opinion  of  the  Court  may  be  obtained  and  the  Court 
has  power  to  reduce  the  amount  or  cancel  the  agreement 
altogether.  The  attorney,  moreover,  cannot  acquire  any 
interest  in  any  suit  or  contentious  proceeding,  or  stipulate 
for  payment  only  in  the  event  of  success  in  such  suit  or 
proceeding.^  That  a  contract  between  lawyer  and  client 
for  a  fee  contingent  upon  the  successful  event  of  the  case 
is  valid  has  not,  apparently,  been  doubted  in  Pennsylvania 

1  Drax  V.  Scroope,  2  B.  &  Ad.,  581  (1831). 

2  Clare  v.  Joseph,  76  L.  J.  K.  B.  724. 


Of  Pickwick  63 

since  Patten  v.  Wilson,  34  Pa.  299,  where  such  an 
agreement  was  held  to  operate  as  an  equitable  assign- 
ment of  the  verdict  in  an  action  of  tort,  and  therefore 
good  as  against  an  attaching  creditor  of  the  cHent.^  In 
Perry  v.  Dicken,  105  Pa.  83  (1884)  the  attorney,  who  ap- 
pears to  be  the  same  who  figured  in  /.  Charles  Dickens' 
Case,  67  Pa.  169  (strange  coincidence  of  names),  was  the 
only  surviving  witness  as  to  facts  essential  to  his  client's 
case,  and  undertook  with  other  counsel  of  record  to  pro- 
secute the  case  (an  ejectment)  for  the  contingent  fee 
of  $5,000.  He  testified,  he  won  the  case,  he  sued  his 
client  for  his  fee  and  recovered ;  and  the  Supreme  Court 
by  a  majority  of  four  to  three  affirmed  the  judgment. 

We  must  confess  with  sorrow  that  for  the  last  twenty- 
five  years  the  standard  of  our  profession  in  this  and  other 
states  has  been  steadily  deteriorating.  The  lawyer  no 
longer  occupies  the  position  he  formerly  held  as  a  member 
of  a  class  to  which  on  the  whole  others  had  a  right  to  look 
up  with  respect  and  confidence,  and  the  Bench  is  not 
likely  to  rise  much  higher  than  the  average  of  the  pro- 
fession. There  are  doubtless  other  causes,  but  the  capital 
cause  is  this  professional  and  degrading  practice,  now  so 
prevalent,  especially  in  actions  of  tort,  and  most  of  all  in 
damage  cases  against  corporations,  which  calls  emphati- 
cally for  an  awakening  of  the  professional  conscience  and 
for  correction  by  the  legislature.  This  is  the  duty  of  the 
day  for  those  of  us  who  wish  the  Bar  of  our  state  and 
country  to  regain  its  former  reputation. 

1  Phila.  V.  Terry,  17  Phila.  275;  Fenn  v.  McCarroll,  208  Pa.  615. 


Ill 

The  Law  and  Lawyers  of 
Sir  Walter  Scott 


The  Law  and  Lawyers  of 
Sir  Walter  Scott' 

"If  it  isna  weel  bobbit 
We'll  bob  it  again." 

Walter  Scott  occupies  a  unique  position  in  literature. 
His  fame  rests  on  his  poems  and  novels,  but  he  was  also 
an  historian,  an  antiquarian,  a  lawyer,  a  judge  and  a 
clerk  of  the  highest  Court  in  Scotland.  No  less  a  man 
than  Emerson  said  that  Scott,  in  the  number  and  variety 
of  his  characters,  approached  Shakespeare,  and  Scott's 
flatterers  were  fond  of  making  a  closer  comparison,  but 
Scott  himself,  with  the  natural  modesty  of  a  Scotchman, 
and  the  true  self  appreciation  of  a  genius,  said  he  was 
not  fit  to  tie  Shakespeare's  brogues.  He  surely  could 
not  have  written  Hamlet,  nor  indeed  could  he  have 
written  Rabbi  ben  Ezra,  nor  yet  In  Memoriam;  but  the 
Lady  of  the  Lake,  Marmion  and  the  Lay  of  the  Last  Min- 
strel, with  their  smooth  verse  and  charming  ballads, 
have  never  been  equalled.  His  novels  are  wonderful. 
No  writer  has  produced  so  much  that  is  so  uniformly 
good.  He  hits  the  gold  every  time.  Stevenson,  no  mean 
critic,  called  him,  "out  and  away  the  king  of  the  Roman- 
tics" and  "the  best  of  novelists,"  but  maintains  that 
Scott  was  wrong  in  his  history,  and  picks  the  Lady  of 
the  Lake  and  Guy  Mannering  to  tatters,  for  their  "bad 
English,  bad  style,  and  abominably  bad  narrative." 
Macaulay,  on  the  other  hand,  was  amazed  by  Scott's 

^  An  address  delivered  to  the  Law  Association  of  Philadelphia, 
on  March  6,  1906. 


68  The  Law  and  Lawyers 

skilful  use  of  history  in  his  novels.  "Scott  has  used," 
says  Macaulay,  "those  fragments  of  truth  which  his- 
torians have  scornfully  thrown  behind  them,  in  a  manner 
which  may  well  excite  their  envy.  He  has  constructed 
out  of  their  gleanings  works  which,  considered  as  his- 
tories, are  scarcely  less  valuable  than  theirs."  "Yet," 
Macaulay  adds  with  his  usual  snarl,  "there  are  in 
Waverley  and  Marmion  Scotticisms  at  which  a  London 
apprentice  would  laugh."  This  London  apprentice  doubt- 
less is  elder  brother  to  Macaulay's  celebrated  school- 
boy; but  Walter  Scott,  when  Lockhart  kindly  pointed 
out  some  little  slips,  merely  said,  "I  never  learned  gram- 
mar." De  Quincey  alleged  that  Scott  utterly  failed  in 
depicting  the  English  peasantry,  nor  would  this  be  sur- 
prising, for  Scott  never  lived  among  them,  and  so,  accord- 
ing to  other  critics,  he  has  not  been  absolutely  correct 
in  reproducing  the  colloquial  Scotch  of  the  Highlands. 

We  can  afford  to  pass  over  his  slips  in  grammar,  his 
errors  in  style,  his  occasional  mistakes  in  history,  for  the 
sake  of  the  vivid  humorous  narrative  and  stirring  verse. 
But  vivid  and  stirring  as  they  are,  there  is  not  a  visible 
trace  in  the  whole  series  that  their  author  was  conscious 
(though  Stevenson  says  all  Scots  are  thus  conscious) 
of  the  fragility  and  unreality  of  that  scene  in  which  we 
all  play  our  uncomprehended  parts.  He  looked  on  this 
strange  world,  so  infinitely  pathetic,  so  irresistibly  comic, 
as  substantial  and  necessary.  No  doubt  of  its  reality 
ever  entered  his  mind. 

As  Taine  said,  Scott  paused  on  the  threshold  of  the 
soul.  Carlyle  said  there  was  nothing  spiritual  in  him; 
the  Mystery  of  Existence  (with  capitals)  was  not  great 
to  him.  He  quietly  acquiesced  and  made  himself  at  home 
in  a  world  of  conventionalities.  But,  as  Carlyle  gra- 
ciously concludes,  "when  he  departed  he  took  a  Man's 
life  along  with  him"  —  which  upon  the  whole  is  not  very 
remarkable. 


Of  Sir  Walter  Scott  69 

As  Scott  took  the  world  as  he  found  it,  so  we  must 
take  Scott  as  we  find  him,  and  acknowledge  what  Emerson 
calls  "the  exceptional  debt  which  all  English  speaking 
men  have  gladly  owed  to  his  character  and  genius." 
He  is  indeed  "the  delight  of  generous  boys."  He  who 
wrote  that  fateful  tragedy,  The  Bride  of  Lammermoor, 
("worthy  of  .^schylus"),  and  the  Heart  of  Mid-Lothian, 
also  wrote  those  rattling  romances,  Guy  Mannering, 
Quentin  Durward,  Ivanhoe  and  The  Talisman,  and  who- 
soever reads  them,  old  as  he  may  be,  may  become  for 
the  time  a  boy  again. 

Scott  was  a  worshipper  of  the  God-of-things-as-they- 
are,  a  rank  Tory,  a  valiant  Jacobite  from  a  boy,  unduly 
deferential  to  the  Prince  Regent;  but  he  was  upright, 
modest  and  fair-minded,  he  was  gentle  and  generous 
and  truthful,  (except  in  one  egregious  instance),  good 
humor  streamed  from  every  pore,  he  was  thoroughly  in 
sympathy  with  everybody,  including  himself,  he  was 
sane,  cool  and  courageous,  he  was  born  under  a  dancing 
star;  and  when  that  fateful  day  arrived  of  threatened 
insolvency,  he  wrote  in  his  journal  Venit  ilia  suprema  dies, 
and  without  a  whimper  sat  down  at  his  desk.  He  wrote  a 
volume  of  Woodstock  (there  were  three  of  them)  in  fifteen 
days  and  said  he  could  have  done  it  in  ten,  were  it  not 
for  his  Court  of  Sessions  work.  The  motto  on  his  sun- 
dial was :  "Work  for  the  night  is  coming,"  and  in  his  books 
he  often  says,  "Tomorrow  is  a  new  day." 

"The  sun  set,  but  set  not  his  hope; 
Stars  rose,  his  faith  was  earHer  up; 
He  spoke,  and  words  more  soft  than  rain, 
Brought  the  Age  of  Gold  again; 
His  action  won  such  reverence  sweet, 
As  hid  all  measure  of  the  feat." 

But  I  have  no  desire  to  don  the  waxen  wings  of  criti- 
cism or  biography.     The  subject  of  this  paper  is  the 


70  The  Law  and  Lawyers 

Law  and  Lawyers  of  Scott,  and  our  purpose  is  to  portray 
Walter  Scott  as  a  lawyer  and  to  trace  the  influence  of 
his  legal  training  and  study  upon  his  writings.  No  one 
reading  his  novels  and  poems  without  this  thought  in 
mind  can  realize  how  much  of  their  interest,  learning  and 
humor  is  derived  from  this  source.  It  is  safe  to  say  that 
had  not  Scott  been  a  lawyer,  his  writings  would  have  lost 
much  of  their  characteristic  flavor. 

Walter  Scott,  the  son  of  Walter,  was  born  August  15, 
1771.  He  died  September  21,  1832.  In  hi?  fifteenth  year 
he  became  an  industrious  apprentice  in  the  office  of  his 
father,  a  Writer  to  the  Signet,  and  in  the  little  back  room 
underwent  the  toilsome,  but  beneficial,  drudgery  of  an 
attorney's  clerk,  learning,  what  he  never  forgot,  the 
value  of  work, — 

"That  grips  together  the  rebellious  days." 

He  says  that  he  disliked  the  monotony  of  the  office, 
detested  its  confinement,  and  reviled  the  "dry  and  barren 
wilderness  of  conveyances,"  but  he  was  ambitious,  and 
said  of  himself  that  when  actually  at  the  oar,  no  man 
could  pull  harder  than  he.  He  made  his  extra  pocket 
money  for  books  and  the  theatre  by  copying  papers, 
and  once  wrote  120  folios  without  stopping.  He  then 
decided  to  adopt  the  advocate's  profession,  and  from  1789 
to  1792,  pursued  the  regular  course  of  study,  including 
Heineccius'  Analysis  of  the  Pandects  and  Erskine's 
Institutes.  The  Scots  law  formed  a  complete  and  inter- 
esting system,  dating  as  a  whole  from  the  institution  of 
the  Court  of  Session  in  1532,  by  James  V,  having  its 
composite  origin  in  the  Civil,  Canon  and  Feudal  laws, 
English,  French  and  Scottish  customary  law,  with  statu- 
tory modifications,  a  tangled  skein  of  many  colored 
threads,  woven  into  a  picturesque  and  serviceable  tartan 
plaid  by  men  inferior  to  none  in  legal  ability  and  learning, 


Of  Sir  Walter  Scott  71 

for  as  Scott  himself  said,  although  Heaven  did  not  form 
the  Caledonian  for  the  gay  world,  a  Scotchman  is  a  born 
lawyer.  The  Court  of  Session,  by  the  way,  was  originally 
modelled  after  the  Parliament  of  Paris  and  the  Scottish 
lawyers  frequently  studied  in  Paris  and  Leyden. 

Scott,  himself,  describes  Scottish  law  as  a  fabric  formed 
originally  under  the  strictest  influence  of  feudal  princi- 
ples, but  renovated  and  altered  by  the  change  of  times, 
habits  and  manners,  until  it  resembles  some  ancient 
castle,  partly  entire,  partly  ruinous,  partly  dilapidated, 
patched  and  altered,  during  the  succession  of  ages,  by  a 
thousand  additions  and  circumstances  —  a  comparison 
reminding  one  of  Blackstone's  similar  description  of  the 
common  law  in  his  third  book. 

Scott  with  his  friend  and  fellow-student,  William  Clerk, 
was  called  to  the  Bar  on  July  11,  1792,  in  his  21st  year. 
With  characteristic  humor  and  at  the  same  time  exhibit- 
ing his  fondness  for  the  history  of  the  law,  he  wrote 
his  thesis  (which  apparently  has  never  been  printed)  on 
the  title,  De  Cadaveribus  Punitorum,  (Concerning  the 
Disposal  of  the  Dead  Bodies  of  Criminals,)  Dig.  xlviii,  c. 
24,  and  dedicated  the  same  to  Lord  Braxfield,  the  "hang- 
ing judge,"  or  as  Scott  used  to  allude  to  him,  "Old 
Braxie."  He  was  a  well-known  figure  on  the  Scottish 
Bench,  curious  stories  are  told  of  him,  and  he  was  the 
original  of  Stevenson's  Weir  of  Hermiston. 

In  Redgauntlet,  Scott  introduces  himself  as  Alan  Fair- 
ford,  his  father  as  Alexander  or  "Saunders"  Fairford, 
and  his  friend  William  Clerk  as  Darsie  Latimer,  the  hero 
of  the  story.  In  the  novel,  old  Fairford  writes  to  a  friend, 
as  Scott,  senior,  may  well  have  done, — "Alan  has  passed 
his  private  Scots  law  examination  with  good  approbation 
—  a  great  relief  to  my  mind.  His  public  trials,  which  are 
nothing  in  comparison,  save  a  mere  form,  are  to  take 
place  by  order  of  the  Honorable  Dean  of  Faculty  on 


72  The  Law  and  Lawyers 

Wednesday  first ;  and  on  Friday  he  puts  on  the  gown  and 
gives  a  bit  chack  of  dinner  to  his  friends  and  acquain- 
tances, as  is  the  custom."  In  the  novel  Alan's  thesis  does 
not  concern  the  dead  bodies  of  criminals,  but  is  upon 
the  title  De  periculo  et  commodo  rei  vendilae,  and  ac- 
cording to  the  story,  Alan  studied  law  to  please  old  Fair- 
ford,  who  regarded  as  the  proudest  of  all  distinctions  the 
rank  and  fame  of  a  well-employed  lawyer,  and  would 
have  laughed  with  scorn  at  the  barren  laurels  of  literature. 
Scott's  description  of  Alan  was  true  of  himself:  "He 
had  a  warmth  of  heart  which  the  study  of  the  law  and  of 
the  world  could  not  chill,  and  talents  which  they  had 
rendered  unusually  acute." 

In  Scott's  first  criminal  case,  he  defended  a  poacher, 
and  whispered  to  his  client,  as  he  heard  the  verdict, — 
not  guilty  — "You're  a  lucky  scoundrel."  "  I  am  just  of 
your  mind,"  was  the  reply,  "and  I'll  send  you  a  hare  in 
the  morn." 

But  when  retained  in  a  more  important  case,  he  was 
not  so  fortunate.  The  General  Assembly  of  the  Kirk 
of  Scotland  sat  in  judgment  in  the  case  of  a  clergyman 
whose  name  was  M' Naught,  though  it  should  have  been 
M 'Naughty,  for  he  was  accused  of  habitual  drunkenness, 
celebrating  irregular  marriages,  singing  of  profane  songs 
and  dancing  with  a  "sweetie  wife,"  that  is  a  lassie  who 
sold  gingerbread,  or  "sweeties"  at  a  country  frolic. 

On  account  of  the  personnel  of  the  Court,  Scott  could 
not  have  prudently  made  the  obvious  defence  that  the 
reverend  gentleman  had  at  the  most  been  guilty  of  mere 
clerical  errors,  so  he  was  unfortunately  obliged  to  defend 
the  case  upon  its  slender  merits.  As  he  quoted  more  at 
large  from  his  client's  convivial  ditties  than  was  agreeable 
to  the  General  Assembly,  one  of  that  venerable  Court 
called  him  sternly  to  order,  while  his  chums,  who  filled 
the  gallery,  encouraged  him  with  shouts  of  "encore." 


Of  Sir  Walter  Scott  73 

Disconcerted  by  these  inconsistent  suggestions,  Scott 
made  somewhat  of  a  fizzle.  At  any  rate,  Mr.  M 'Naughty 
was  convicted,  and  his  youthful  advocate  walked  out  of 
Court  feeling,  as  we  have  all  sometimes  felt,  that  the 
whole  azure  canopy  had  suddenly  shrivelled  into  a 
blackened  scroll.  He  was  greeted  by  his  cronies  with 
shouts  of  laughter,  and  dragged  off  to  a  neighboring 
tavern  where  they  spent  the  evening  in  a  High  Jinks 
with  which  the  Scottish  lawyers  were  wont  to  drive 
away  dull  care. 

In  Guy  Mannering,  Scott  describes  a  High  Jinks  in 
which  Paulus  Pleydell,  Esq.,  was  found  taking  a  promi- 
nent part  when  Mannering  and  Dandie  Dinmont  sought 
him  out  for  advice.  In  these  merrymakings  dice  were 
thrown  by  the  company  and  those  upon  whom  the  lot 
fell  were  obliged  to  assume  certain  fictitious  characters 
or  repeat  verses.  Forfeits  were  easily  incurred,  and 
paid  by  additional  rounds  of  drinks.  Pleydell  was 
grotesquely  attired  as  King  of  the  Revels.  "It's  him," 
said  Dandie,  astounded  at  the  sight.  "Deil  o'  the  like  o' 
that  ever  I  saw."  Dandie  wanted  to  retain  Pleydell 
in  a  dispute  with  a  neighbor  about  a  lot  of  land  worth 
scarcely  five  shillings  a  year.  "Confound  you,"  said 
Pleydell,  "why  don't  you  take  good  cudgels  and  settle 
it?"  "Od,  sir,"  answered  the  farmer,  "we  tried  that 
three  times  already;  but  I  dinna  ken,  we're  baith  gey 
good  at  single  stick  and  it  couldna  weel  be  judged." 

"Then  take  broadswords  and  be  d d  to  you,  as  your 

fathers  did  before  you,"  said  the  counsel  learned  in  the 
law.  Dandie  was  at  first  about  to  take  the  advice  in 
earnest,  and  goes  away  in  sorrow,  but  afterwards  Pleydell 
takes  his  case.  "I  don't  see,  after  all,"  said  he,  "why 
you  should  not  have  your  lawsuits  too,  and  your  feuds 
in  the  Court  of  Session,  as  well  as  your  forefathers  had 
their  manslaughters  and  fire  raisings." 


74  The  Law  and  Lawyers 

Scott  himself  was  no  anchorite;  he  rather  prided 
himself  on  his  skill  in  making  punch,  and,  as  he  said  in 
his  journal,  he  thought  "an  occasional  jolly  bout  im- 
proved society,"  and  recommended  a  little  magnesia 
for  the  "morning  after." 

Later  on,  Scott  defended  a  young  man  charged  with 
homicide  and  secured  his  acquittal.  Part  of  his  brief 
is  given  by  Lockhart  in  Chapter  VII.  It  is  a  careful  and 
conscientious  though  rather  labored  piece  of  work. 

It  must  be  confessed  that  Scott  did  not  score  a  bril- 
liant success  at  the  Bar,  although  in  a  letter  to  his  fiancee 
in  1797,  he  claimed  that  none  of  his  contemporaries  had 
very  far  outstripped  him,  and  on  December  16,  1799,  he 
was  glad  to  accept  the  office  of  Sheriff  or  Sheriff  Depute 
of  Selkirkshire,  a  position  which  paid  -^250  or  i!^300  per 
annum,  and  did  not  conflict  with  his  private  practice, 
but  rather  advanced  it.  The  duties  of  a  Scotch  Sheriff 
are,  naturally,  very  different  from  those  of  the  English 
official  of  the  same  name,  as  they  resemble  those  of  a 
County  Court  Judge.  Scott's  jurisdiction  included  gen- 
erally all  civil  actions,  personal  and  possessory,  and 
certain  offenses  against  the  criminal  law;  and,  in  addi- 
tion, he  returned  juries  and  executed  writs.  Scott's 
letters  and  journal  contain  frequent  references  to  his 
duties  which  he  discharged  in  a  humane  and  sensible 
manner. 

He  often  procured  a  settlement  of  insignificant  cases; 
as  he  said  "there  is  something  sickening  in  seeing  poor 
devils  drawn  into  great  expenses  about  trifles,  by  inter- 
ested attorneys."  But  he  also  admitted,  doubtless 
recognizing  the  legal  mind  and  litigious  nature  of  the 
Scot,  that  too  cheap  access  to  litigation  has  its  evils,  on 
the  other  hand. 

In  1830,  a  convict  attempted  to  escape  from  the 
Court-room.     Sir  Walter,  with  sixty  years  on  his  head, 


Of  Sir  Walter  Scott  75 

leaped,  game  leg  and  all,  from  the  Bench  and  stopped 
him  with  his  own  hand.  No  English  Sheriff  could  have 
done  more. 

Even  before  his  appointment  as  Sheriff,  Scott  was 
incited  by  the  writings  of  Matthew  Gregory  Lewis,  the 
celebrated  "Monk,"  to  try  his  hand  at  ballad  writing  in 
imitation  of  the  German  of  Burger,  and  soon  found  that 
the  "fair  fields  of  old  romance"  were  ready  for  his  culti- 
vation. His  work  in  ballad  writing,  and  the  Border 
Minstrelsy,  culminated  in  1805,  when  the  Lay  of  the  Last 
Minstrel  marked  a  new  epoch  in  literature.  The  general 
admiration  of  this  lovely  poem  led  Pitt  to  appoint  Scott 
one  of  the  Clerks  of  Session,  apparently  discovering 
some  connection  between  poetry  and  a  snug  berth,  and, 
although  Pitt  died  just  at  that  time,  the  appointment 
was  confirmed  by  Fox,  as  is  gratefully  commemorated 
by  Scott  in  the  introduction  to  Marmion. 

Just  one  hundred  years  ago,  therefore, —  to  be  exact,  on 
March  8,  1806, —  Scott's  appointment  was  gazetted  and 
he  took  leave  of  one  profession  to  adopt  another.  His 
salaries  as  Sheriff  and  Clerk  of  Session,  aggregated  about 
£\bQQ;  his  duties  in  the  first  office  were  not  burdensome, 
while  as  Clerk  he  was  only  occupied  during  the  sessions 
of  the  Court.  The  Clerk's  duties  were  not  so  light  as  he 
modestly  stated  them  to  be,  but  called  for  diligence, 
accuracy  and  regularity,  as  frequent  notes  in  his  journal 
attest,  taking  up  probably  about  one-half  of  his  time. 
For  twenty-five  years  he  held  this  office,  until  retired  by 
disability  November  18,  1830,  when  his  salary  was 
reduced  to  ;^840. 

His  place  in  Court  is  still  pointed  out,  where  he  wrote 
many  a  page  of  Waverley  novels,  to  the  accompaniment 
of  long-winded  argument,  for  Scott  was  never  disturbed 
by  his  surroundings.  He  confesses  he  sometimes  took  a 
nap,     "The  Lords,"  said  he,  "may  keep  awake  and  mind 


76  The  Law  and  Lawyers 

their  own  affairs";  but  when  Court  adjourned  and  his 
duties  were  over,  he  was  his  own  master  and  would  pack 
up  his  papers  in  his  green  bag  and  hurry  off  to  meet  his 
friends  at  a  "Gaudeamus"  or  to  buy  a  fine  print  of 
Charles  Edward.  Yet  sometimes  this  official  drudgery 
offended  him.  "Old  Hutton,"  he  relates,  ''parous  et 
infrequens  Deorum  ciillor,  used  to  say  it  was  worth  while 
going  to  a  Presbyterian  kirk  for  the  pleasure  of  coming 
out,  and  truly  I  am  of  the  same  opinion  as  to  the  Court 
of  Session." 

In  1808,  Scott  was  made  Secretary  of  the  Scottish 
Judicature  Commission,  which  was  appointed  at  the 
instance  of  Lord  Eldon,  who  had  no  objection  to  innova- 
tions so  long  as  they  did  not  affect  his  own  Court,  which 
needed  them  mos  t .  Scott  regarded  this  as  a  post  of  consid- 
erable difficulty,  as  well  as  distinction.  The  Commission 
reported  in  1810,  a  bill  which  made  great  changes  in  the 
law  and  led  Scott  to  write  an  essay  on  Judicial  Reform, 
an  able  paper,  portions  of  which  are  given  by  Lockhart. 

Scott  was  opposed  to  the  introduction  into  Scotland 
of  trial  by  jury  in  civil  cases,  which  occurred  in  1815, 
and  expressed  his  disgust  with  the  inferior  character  of 
the  jurors  under  the  new  system.  He  was  also  much 
opposed  to  the  House  of  Lords  sitting  in  London  as  a 
Supreme  Court  for  Scotland,  and  predicted  from  it  the 
downfall  of  the  Scottish  Bench,  Bar  and  Law,  and  in 
Redgauntlet  we  find  one  of  the  characters,  Hugh  Red- 
gauntlet,  denouncing  the  Scottish  advocates  as  mongrel 
things  that  must  creep,  to  learn  the  ultimate  decision  of 
their  causes,  to  the  bar  of  a  foreign  court.  In  the  Heart 
of  Mid-Lothian  he  expresses  himself  in  favor  of  public 
executions  on  account  of  their  effect  on  the  spectator. 

But  while  thus  generally  conservative,  he  was  in  ad- 
vance of  his  time  in  advocating  the  abolition  of  capital 
punishment  for  all  save  a  few  crimes,  and  its  infliction 


Of  Sir  Walter  Scott  77 

with  certainty  in  all  proper  cases.  He  disliked  the  Scotch 
verdict  "not  proven,"  that  medium  quid,  saying:  that  one 
who  is  not  proven  guilty  is  innocent  in  the  eye  of  the 
law.  He  objected  to  strict  rules  of  court,  e.  g.  those  im- 
posing judgments  by  default,  which  are  seldom  enforced 
because  the  penalty  is  disproportioned  to  the  offense,  so 
that  the  rule  ends  by  being  a  scarecrow.  He  thought 
that  attorneys  ought  to  be  fined  for  errors  or  omissions 
in  practice. 

Scott  loved  and  honored  his  own  profession  and  re- 
spected his  brother  lawyers.  He  used  to  say,  after  he  had 
retired  from  practice,  that  intelligent  barristers  were  the 
best  companions  in  the  world  and  their  conversation 
amused  him  more  than  that  of  other  professional  men, 
because  there  was  more  of  life  in  it,  with  which,  in  all 
its  phases,  they  became  acquainted. 

It  is  not,  therefore,  surprising  to  find  Scott's  novels 
filled  with  his  impressions  of  the  law  and  lawyers.  He 
could  afford  (and  so  can  we)  an  occasional  jest  at  the 
expense  of  our  profession  or  shall  we  say  craft,  but  there 
is  a  vast  difference  between  Dickens's  treatment  of  law 
and  lawyers  and  Sir  Walter's.  Dickens  saw  nothing  good 
in  either,  and  caricatured  both.  Scott,  on  the  other  hand, 
was  an  artist :  he  knew  a  thousand  times  as  much  about 
the  subject  as  Dickens,  and,  in  his  fair-minded  manner, 
endeavored  to  give  a  just  picture  of  it.  But,  naturally, 
the  scamps  of  the  law  play  a  larger  part  in  literature  than 
their  betters,  for  a  good,  well-behaved  lawyer  is  in  sooth 
a  very  prosaic  individual.  We  —  let  us  say  we  for  the 
sake  of  euphony  —  do  the  day's  work  for  a  mere  living 
wage,  keep  our  clients  out  of  the  clutches  of  the  Courts 
as  much  as  we  can ;  we  labor  on  our  briefs  which  nobody 
reads,  except,  of  course,  the  Judges  for  whose  mental  im- 
provement they  are  intended,  and  when  we  die,  our 
libraries,  if  we  have  any,  are  generally  sold  at  auction. 


78  The  Law  and  Lawyers 

But  a  bad  lawyer  is  such  a  picturesque  villain  that  he  is 
the  stock  character  of  every  novelist  and  playwright  — 
Judas  Iscariot,  if  he  were  not  a  lawyer,  is  said  to  have 
carried  a  bag,  the  universal  badge  of  our  profession,  so 
our  enemies  may  regard  him  as  an  honorary  member  of 
the   Bar. 

Scott  puts  in  the  mouth  of  The  Antiquary,  an  estimate 
of  the  honest  lawyer:  "In  a  profession,"  says  he,  "where 
unbounded  trust  is  necessarily  imposed,  there  is  nothing 
surprising  that  fools  should  neglect  it  in  their  idleness 
and  tricksters  abuse  it  in  their  knavery,  but  it  is  the  more 
to  the  honour  of  those,  and  I  will  vouch  for  many,  who 
unite  integrity  with  skill  and  attention,  and  walk  honour- 
ably upright  where  there  are  so  may  pitfalls  and  stumbling 
blocks  for  those  of  a  different  character.  To  such  men, 
their  fellow-citizens  may  safely  entrust  the  care  of  pro- 
tecting their  patrimonial  rights  and  their  country  the 
more  sacred  charge  of  her  laws  and  privileges."  But, 
"They  are  best  aff,  however,  that  hae  least  to  do  with 
them,"  said  Edie  Ochiltree,  interrupting  the  panegyric. 

In  Paulus  Pleydell,  "a  good  scholar,  an  excellent 
lawyer  and  a  worthy  man,"  Scott  undoubtedly  repro- 
duced some  lawyer  of  his  acquaintance,  and  Ticknor 
said,  that  in  conversing  with  Scott,  he  observed  the  simi- 
larity of  the  author's  opinions  with  those  expressed  by 
Pleydell  in  Guy  Mannering.  We  have  already  noticed 
how  Mannering  discovered  Pleydell  on  a  Saturday  night 
at  the  tavern  where  he  was  celebrating  a  High  Jinks. 
On  the  Sunday,  Pleydell  was  a  different  man,  piloted 
Mannering  to  church,  and  then  took  him  home  to  dinner, 
where  he  showed  Mannering  his  library  filled  with  books, 
"the  best  editions  of  the  best  authors." — "These,"  said 
Pleydell,  "are  my  tools  of  trade.  A  lawyer  without  his- 
tory or  literature  is  a  mechanic,  a  mere  working  mason ; 
if  he  possesses  some  knowledge  of  these,  he  may  venture 


Of  Sir  Walter  Scott  79 

to  call  himself  an  architect."  .  .  .  "It  is  the  pest 
of  our  profession,"  continued  Pleydell,  "that  we  seldom 
see  the  best  side  of  human  nature.  People  come  to  us 
with  every  selfish  feeling  newly  pointed  and  grinded. 
In  civilized  society,  law  is  the  chimney  through  which 
all  the  smoke  discharges  itself,  that  used  to  circulate 
through  the  whole  house  and  put  every  one's  eyes  out." 
He  sends  for  his  clerk.  Driver,  who  of  course  was  at  a 
High  Jinks.  "That's  a  useful  fellow,"  said  the  coun- 
sellor, "and  he's  such  a  steady  fellow  —  some  of  them  are 
always  changing  their  alehouses  so  that  they  have 
twenty  cadies  sweating  after  them,  but  this  is  a  complete 
fixture  in  Luckie  Wood's,  there  he's  to  be  found  at  all 
times  when  he  is  ofif  duty:  Sheer  ale  supports  him,  it 
is  meat,  drink  and  clothing,  bed,  board  and  washing." 
Then  Scott  gives  an  amusing  account,  too  long  to  quote, 
of  how  Pleydell  and  Driver  got  up  an  appeal  case  on  a 
Saturday  night,  during  a  High  Jinks.  "Law's  like 
laudanum,"  said  Pleydell,  in  another  place,  "it's  much 
more  easy  to  use  it  as  a  quack  does,  than  to  learn  to  apply 
it  like  a  physician." 

Even  Geddes,  the  Quaker  of  Redgatmtlet,  admits  that 
he  has  known  may  righteous  men  who  have  followed 
the  profession  in  honesty  and  uprightness  of  walk,  — "The 
greater  their  merit  who  walk  erect  in  a  path  which  so 
many  find  slippery." 

Scott  is  strongest  when  he  writes  of  Scotland  and 
Scotchmen.  He  often  admits  that  he  knows  little  of 
English  law,  and  when  he  speaks  of  it,  he  is  apt  to  slip. 
But  in  Scots  law  and  the  feudal  system,  on  which  it  was 
founded,  he  was  at  home.  There  was  probably  no 
country  in  which  the  feudal  system  was  more  deeply 
rooted  and  there  is  probably  none  in  which  so  much  of 
its  spirit  remains  to  this  day.  In  no  country  was  gene- 
alogy more  generally  studied ;   for  one  reason  the  canny 


80  The  Law  and  Lawyers 

Scot,  with  his  bonny  blue  een  wide  open  for  the  main 
chance,  always  considered  the  possibility  of  his  becoming 
the  ultimate  heir  of  entailed  estates. 

Scott  was  proud  of  his  ancestry.  Some  of  his  ancestors 
were  Quakers,  so  he  was  proud  of  them,  some  were 
notorious  Highland  thieves,  so  he  was  proud  of  them; 
he  loved  a  villain  for  a  hero,  if  only  he  were  Scotch;  he 
loved  the  freebooter's  border  raids,  the  stark  moss- 
trooper's wild  foray,  he  loved  the  stories  of  the  dark 
days  when  Scotland's  forests  were  filled  with  wild  beasts 
pursued  by  wilder  men,  and  men  in  turn  were  chased 
with  savage  hounds  —  men  of  whom  he  sang : 

"Wild  through  their  red  or  sable  hair, 
Looked  out  their  eyes  with  savage  glare 

On  Marmion  as  he  pass'd, 
Their  legs  above  the  knee  were  bare, 
Their  frame  was  sinewy,  short  and  spare 

And  hardened  to  the  blast." 

These  savages  ate  their  venison  raw,  squeezing  out  the 
dripping  blood  between  pieces  of  wood. 

In  the  time  of  Charles  I,  a  fellow  known  as  Christie's 
Will  kidnapped  a  Judge  whose  opinion  was  likely  to  be 
undesirable,  and  kept  him  close  until  the  case  was  finished, 
which  was  considered  an  excellent  joke.  A  Sheriff  who 
had  become  somewhat  unpopular,  was  plunged  into  a 
boiling  cauldron  and  furnished  broth  for  his  murderers. 
Among  the  most  ferocious  of  these  savages  were  the 
blood-thirsty  Macleods,  a  tribe  of  Scandinavian  extrac- 
tion, whose  feud  with  the  MacDonalds  is  told  by  Scott 
in  the  Lord  of  the  Isles.  These  terrible  wretches  finally 
discovered  the  MacDonalds  in  a  cavern,  built  a  fire 
at  the  entrance  and  suffocated  the  whole  tribe.  In 
1814,  Scott  visited  the  cave  and  found  recent  relics  of 
the  massacre,  bringing  away  a  MacDonald  skull  as  a 


Of  Sir  Walter  Scott  81 

memento.  Once,  James  VI  tried  to  civilize  the  Macleods 
by  introducing  colonists  among  them,  but  the  Macleods 
rose  against  the  intruders  and  exterminated  them. 

Scott  was  a  gentle  spirit,  but  his  heart  warmed  within 
him  when  he  read  and  told  of  all  these  things.  After 
all,  these  fellows  were  Scotchmen  and  he  was  a  Scot  and 
it  was  all  as  glorious  and  grand  as  the  sounding  verses : 

"Regibus  et  legibus  Scotici  constantes 
Vos  clypeis  et  gladiis  pro  patriis  pugnantes, 
Vestra  est  victoria,  vestri  est  et  gloria 
In  cantu  et  historia,  perpes  est  memoria." 

We  do  not  ordinarily  expect  to  find  much  of  legal  inter- 
est in  poetry ;  not  only,  however,  do  Scott's  poems  con- 
tain many  legal  allusions,  but  Scott  has  added  to  them 
frequent  annotations.  He  appends  to  the  Ballad  of 
Johnie  Armstrong  the  bond  of  man  rent,  showing  the 
feudal  service  by  which  the  Armstrong  held  his  land  of 
Lord  Maxwell,  Warden  of  the  West  Marches.  Lord  Max- 
well's Good-night  suggests  the  bond  of  man  rent  between 
Kirkpatrick  and  Lord  Maxwell.  Scott  notes  in  con- 
nection with  the  Lochmaben  Harper,  the  peculiar  allodial 
rights  of  Bruce's  tenants;  the  bond  of  alliance  or  feud- 
stanching  between  the  clans  of  Scot  and  Ker,  and  he  also 
refers  to  numerous  unusual  forms  of  feudal  tenure. 

The  law  of  Clan  MacDuff  granted  exemption  from 
ordinary  jurisdiction,  in  cases  of  homicide  without  pre- 
meditation, to  any  member  of  the  clan  who  rook  refuge 
at  MacDufif's  Cross.  In  Sir  Tristrem,  Queen  Ysonde 
is  condemned  to  essay  the  ordeal  of  hot  iron,  and  Scott 
appends  a  long  note  on  the  subject.  In  the  Lay  of  the 
Last  Minstrel  he  refers  to  the  "neckverse"  of  the  51st 
Psalm,  which  was  read  by  those  claiming  benefits  of 
clergy,   to  save   their  necks.     Earl   Morton  claims  his 


82  The  Law  and  Lawyers 

vassals  best  steed  as  heriot,  thus  provoking  a  conflict, 
so  that: 

"The  valley  of  Eske  from  the  mouth  to  the  source 
Was  lost  and  won  for  that  bonny  white  horse." 

The  oath  ordeal  is  prescribed  to  Deloraine  for  march 
treason;  we  have  the  mutual  defiance  of  the  English 
and  Scottish  heralds;  and  the  trial  by  single  combat 
between  Musgrave  and  Deloraine,  so  characteristic  of 
the  feudal  system  and  ancient  law,  of  which  Scott  gives  a 
long  description. 

In  Marmion,  Scott  refers  again  to  the  trial  by  combat 
and  to  the  feudal  tenure  under  which  land  was  held 
of  the  Abbot  of  Whitby: 

"Then  Whitby's  nuns  exulting  told 
How  to  their  house  three  barons  bold, 
Must  menial  service  do." 

Most  interesting  is  the  fate  of  Constance  de  Beverley, 
"immured"  as  punishment  for  her  sin: 

"Yet  well  the  luckless  wretch  might  shriek, 
Well  might  her  paleness  terror  speak! 
For  there  were  seen  in  that  dark  wall. 
Two  niches,  narrow,  deep  and  tall;  — 
Who  enters  at  such  grisly  door. 
Shall  ne'er  I  ween  find  exit  more. 
And  now  that  blind  old  Abbot  rose, 
To  speak  the  Chapter's  doom, 
On  those  the  wall  was  to  enclose 
Alive,  within  the  tomb;  —  " 

Truly  a  gruesome  fate,  recalling  Poe's  tale  of  the  Cask 
of  Amontillado  and  Balzac's  La  Grande  Breteche. 

But  now  comes  Professor  Maitland,  who  shows  us  in 
his  essay  on  The  Deacon  and  the  Jewess,  that  we  are  all 


Of  Sir  Walter  Scott  83 

\\Tong  about  the  word  immuratus;  that  it  does  not 
mean  "walled  in,"  but  merely  imprisoned  for  life  and 
fed  on  bread  and  water,  a  very  unromantic  punishment; 
in  short,  that  we  must  not  "take  our  Marmion  too  seri- 
ously." Such  is  our  respect  for  this  great  scholar,  whose 
mere  guess  is  better  than  a  thousand  arguments,  that  we 
must  place  this  story  also  upon  the  shelf  where  rest  our 
shattered  illusions.  So  fare-thee-well,  O  shade  of  Con- 
stance de  Beverley,  and  fall  upon  thy  bended  knees,  if 
haply  shades  have  knees,  before  thy  champion,  who, 
after  four  centuries,  hath  rescued  thee  from  a  lingering 
and  horrible  death. 

In  Rokeby,  Scott  gives  us  the  Statutes  of  the  Bucaniers 
by  which  the  pirates  distributed  their  booty: 


"When  falls  a  mate  in  battle  broil 
His  comrade  heirs  his  portion'd  spoil; 
When  dies  in  fight  a  daring  foe, 
He  claims  his  wealth  who  struck  the  blow." 


In  this  poem  Bertram  unconsciously  declares  himself 
to  be  the  murderer  of  Mortham,  and  Scott  in  a  note 
speaks  of  the  frequency  with  which  conscience  stricken 
men,  impelled  by  the  Imp  of  the  Perverse,  confess  or 
allude  to  their  crimes,  and  refers  to  the  case  of  Eugene 
Aram,  mentioning  also  another  case  from  his  personal 
experience. 

In  Rokeby,  Scott  introduces  the  ballad  of  Wild  Darrell 
of  Littlecote  Hall,  with  which  is  connected  the  name  of 
Sir  John  Popham,  Chief  Justice  in  Queen  Elizabeth's 
time.  The  tradition  is  that  Popham  acquired  Littlecote 
Hall  from  the  owner  as  a  bribe  for  his  permitting  Darrell 
to  escape  the  penalty  of  his  crime.  Campbell,  in  his  Life 
of  Popham,  takes  the  story  from  Rokeby  and  Scott's 
notes. 


84  The  Law  and  Lawyers 

We  will  now  go  through  the  Waverley  novels  and 
extract  some  of  the  more  interesting  of  Scott's  legal  ref- 
erences.    To  collect  all  would  unduly  expand  this  paper. 

Much  of  the  humor  of  Waverley  is  furnished  by  the 
Baron  of  Bradwardine  and  Bailie  MacWheeble,  the  latter 
belonging  either  to  the  clan  of  Wheedle  or  that  of 
Quibble,  both  having  produced  persons  eminent  in  the 
law.  Bradwardine  himself  had  studied  law,  but  by 
never  engaging  in  practice,  had  to  the  best  of  his  inability, 
discharged  the  debt  he  owed  to  his  profession.  He  was 
fond  of  interlarding  his  conversation  with  legal  phrases 
to  show  his  knowledge  of  the  science,  and  his  favorite 
theme  was  the  feudal  tenure  under  which  he  held  his 
barony  by  charter  from  David  the  First,  ''cum  liberali 
po testate  habendi  curias  et  justicias,  cum  fossa  et  furca, 
et  saka  et  soka,  et  thol  et  theam,  et  ingangthief  et  outgang- 
thief,  sive  hand  Jiabend  sive  bakbarend,"  and  as  no  one 
knew  the  meaning  of  all  these  words,  his  self  importance 
was  vastly  increased.  His  tenure  would  be  called  in 
England  grand  sergeanty,  and  consisted  in  servitio 
exuendi  seu  detrahendi,  caligas  regis  post  battaliam, 
that  is,  in  undoing  or  pulling  off  the  king's  boots  after  a 
battle;  and  although  his  only  child  was  his  daughter 
Rose,  he  persisted  that  his  barony,  on  account  of  the 
nature  of  the  feudal  service,  was  a  male  fief,  passing  at 
his  death  to  a  distant  cousin.  After  the  battle  of  Preston 
Pans,  in  which  the  Baron  fought  on  the  side  of  Charles 
Edward,  he  insisted  on  performing  the  ceremony,  despite 
the  fact  that  Charles  Edward  was  Prince,  not  King,  and 
did  not  wear  boots  but  brogues. 

Scott  describes  how  after  Culloden,  Fergus  Maclvor 
is  tried  and  executed  for  high  treason  —  one  of  the  bless- 
ings we  are  told,  which  England  had  conferred  upon 
Scotland,  whose  laws  in  that  respect  had  been  milder, 
but  the  attainders  of  the   Baron   and  Waverley  were 


Of  Sir  Walter  Scott  85 

removed  by  pardons  secured  by  lawyers  CHppurse  & 
Hookem.  Colonel  Talbot,  in  gratitude  to  Waverley, 
purchased  the  estate  from  Inchgrabbit,  the  heir  male, 
and  conveyed  Tully  Veolan  to  its  old  owner,  burdened 
only  with  a  marriage  settlement  in  favor  of  Waverley  and 
Rose;  the  story  ends  with  Duncan  MacWheeble  singing 
the  Hymeneal  anthem  of  how  he  circumvented  Inch- 
grabbit and  his  lawyer,  in  driving  the  bargain;  and  at 
the  last  the  old  man  draws  up  "a  wee  minute  of  an  ante- 
nuptial contract  intuitu  matrimonii,  so  that  it  cannot 
be  subject  to  reduction  hereafter  as  a  donation  inter 
virum  et  uxor  em  ^ 

Scott  refers  in  Waverley,  and  again  in  Redgauntlet,  to 
the  leading  case  of  Luckie  Simpson's  cow.  It  was  an  old 
custom  in  Scotland  for  the  landlord,  as  his  parting  guest 
stood  at  the  door,  about  to  mount,  to  present  him  with 
a  farewell  drink  called  the  stirrup  cup.  Now  Luckie 
Jamieson  had  brewed  a  peck  of  malt,  and  set  the  liquor  at 
her  door  to  cool.  Luckie  Simpson's  cow  came  wandering 
by,  seeking  what  she  might  devour,  was  attracted  by  the 
foaming  beverage,  smelt,  tasted  and  yielded  to  the  temp- 
ter. The  unaccustomed  drink  mounted  to  the  animal's 
head,  descended  to  her  legs,  and  affected  her  under- 
standing in  both  directions,  so  that  her  guilt  was  apparent 
to  the  enraged  alewife,  who  demanded  of  Luckie  Simpson 
the  value  of  the  brew.  Litigation  ensued,  the  Bailie 
heard  the  case,  and  then  enquired  of  the  plaintiff  whether 
the  cow  had  sat  down  to  take  her  drink  or  imbibed  it 
standing.  It  being  admitted  that  the  cow  had  committed 
the  deed  whilst  on  her  feet,  the  Court  adjudged  the  drink 
to  be  a  stirrup  cup  for  which  no  payment  could  be  de- 
manded and  dismissed  the  suit. 

The  plot  of  Guy  Mannering  was  taken  from  the  case 
of  Annesley  v.  the  Earl  of  Anglesey,  tried  in  1743,  17 
State  Trials,  1225,  and  Scott  appropriated  the  names  of 


86  The  Law  and  Lawyers 

many  of  the  witnesses  to  characters  in  the  novel,  which 
contains  many  legal  incidents.  As  Paulus  Pleydell 
represents  the  respectable  lawyer,  Gilbert  Glossin  is  the 
shyster.  He  tries  to  push  the  sale  of  old  Bertram's 
property,  in  order  to  buy  it  in  and  get  possession  before 
the  long-missing  heir  should  return,  it  being  understood 
that  the  property  could  not  be  sold  for  debt  if  the  heir 
were  living. 

The  examinations  of  Dirk  Hatteraick  by  Glossin, 
sitting  as  a  magistrate,  of  Vanbeest  Brown  by  Sir  Robert 
Hazlewood,  and  of  Hatteraick  and  Glossin  by  Pleydell, 
Sir  Robert  Hazlewood  and  MacMorlan,  illustrate  the 
dififerences  between  the  English  and  Scottish  methods  of 
procedure ;  the  latter  more  resembling  the  French  system 
of  private  examinations  previous  to  trial,  although  the 
"third  degree,"  as  practised  here,  might  give  suggestions  to 
both.  Glossin  being  committed  as  accessory  to  the  kid- 
napping of  Harry  Bertram,  claims  it  to  be  a  bailable 
ofifense  and  refers  to  a  case  where  resurrection  women, 
who  had  promised  to  secure  a  child's  body  for  dissection, 
stole  and  murdered  a  child  rather  than  break  their  word 
and  disappoint  their  employers. 

Those  of  us  who  have  had  the  pleasure,  after  a  funeral, 
of  reading  the  will  to  the  assembled  family,  will  appreciate 
Mr.  Protocol's  performance  of  that  solemn,  but  some- 
times amusing,  business. 

"Mr.  Procotol,  having  required  silence,  began  to  read 
the  settlement  aloud  in  a  slow,  steady,  business-like 
tone.  The  group  around,  in  whose  eyes  hope  alternately 
awakened  and  faded,  and  who  were  straining  their  appre- 
hensions to  get  at  the  drift  of  the  testator's  meaning, 
through  the  mist  of  technical  language  in  which  the  con- 
veyance had  involved  it,  might  have  made  a  study  for 
Hogarth."  As  the  document  was  of  an  unexpected 
nature,  with  contingent  uses  to  charities,  the  effect  was 


Of  Sir  Walter  Scott  87 

startling  —  and  produced  much  mortification,  which  is 
Scots  law  for  mortmain. 

In  Scots  law  it  will  be  noticed  a  testamentary  dis- 
position of  lands  was  effected  by  means  of  a  trust  deed  or 
mortis  causa  settlement,  reserving  a  life  estate  to  the 
grantor,  quite  different  in  form,  however  similar  in  effect 
to  wills  as  we  know  them.  However,  a  common  lawyer 
must  not  venture  to  meddle  with  a  Scotch  will  lest  he 
be  guilty  of  vicious  intromission,  and  in  addition  expose 
himself  to  unfeeling  criticism.  To  quote  the  elegant 
remark  of  Earl  Douglas, — "The  man  sits  full  still  that 
has  a  rent  in  his  breeks." 

In  the  last  chapter  of  Guy  Mannering,  a  reference  is 
made  to  the  macer's  court,  composed  of  tipstaves,  as  we 
should  call  them,  who  constituted  a  special  court  for 
trying  questions  of  relationship  and  descent,  the  judges 
acting  as  assessors  to  their  own  doorkeepers.  When 
Dinmont  visits  Bertram  in  jail,  the  keeper  wants  to  lock 
up  the  jail,  refusing  to  allow  Dinmont  to  stay  because  he 
had  committed  no  malefaction.  "I'll  break  your  head," 
was  Dandie's  reply,  "if  ye  say  ony  mair  about  it,  and 
that  will  be  malefaction  enough  to  entitle  me  to  ae 
night's  lodging  wi'  you  ony  way."  The  argument  was 
successful,  for  as  the  jailer  remarked,  "A  wilful  man 
maun  hae  his  way." 

The  plot  of  The  Antiquary  turns  on  the  legality  of  the 
marriage  of  Lord  Glenallan  and  Eveline  Neville,  but  its 
chief  interest  to  the  lawyer  will  be  found  in  the  enter- 
taining conversation  of  the  Antiquary,  Jonathan  Old- 
buck.  The  Antiquary  had  read  law  and  made  himself 
master  of  the  learning  of  the  feudal  law,  but  being  under 
no  necessity  to  practise,  had  followed  his  natural  bent  and 
cultivated  his  taste  for  old  books  and  ancient  learning. 
He  would  ponder  over  an  old  black-letter  copy  of  the 
Acts  of  Parliament  for  days  rather  than  play  golf;    he 


88  The  Law  and  Lawyers 

would  trace  the  vestiges  of  an  old  Roman  camp ;  and  he 
discovered  a  curious  stone  inscribed  with  initials  inter- 
preted in  a  learned  manner  by  the  Antiquary,  and  in  a 
trivial  fashion  by  Edie  Ochiltree,  reminding  us  of  the 
similar  story  of  the  stone  discovered  by  the  Pickwick  Club 
which,  indeed,  Dickens  may  have  borrowed  from  Scott. 

The  Antiquary  is  ready  to  remind  Dousterswivel  of 
the  Act  of  9  George  II,  c.  5,  against  cheats  and  imposters, 
warns  Hector  M'Intyre  not  to  interfere  with  the  Sheriff's 
officer,  on  account  of  the  Statute  of  William  the  Lion, 
against  deforcement,  and  in  the  entertaining  examina- 
tion of  Edie  Ochiltree  before  Bailie  Littlejohn,  cites  the 
Act  of  1701,  regulating  bailbonds  and  so  obtains  Ochil- 
tree's release  on  nominal  bail.  So  he  gives  us  an  amus- 
ing account  of  the  law  of  imprisonment  for  debt  in 
Scotland,  which,  technically,  was  not  permitted;  but 
any  one  who  disobeyed  the  king's  writ  requiring  pay- 
ment, was  proclaimed,  by  three  blasts  of  a  horn  at  Edin- 
burgh market  place,  to  be  a  rebel  and  imprisoned  by  an 
elegant  legal  fiction,  for  his  ungrateful  contempt  of  the 
royal  mandate. 

The  Antiquary  delighted  in  the  old-fashioned  nick 
sticks  or  tallies  used  by  bakers  to  record  the  number  of 
loaves  sold  to  their  customers,  just  as  accounts  used  to 
be  kept  by  the  Exchequer,  The  writer  can  remember, 
as  a  boy,  that  this  ancient  method  was  used  by  bakers  in 
this  city. 

In  the  Antiquary  we  are  told  the  story  of  the  ghost 
who  appeared  to  the  despairing  litigant  and  showed 
him  the  secret  depository  of  the  old  deed,  the  missing 
link  in  his  chain  of  title;  and  in  the  opening  of  the 
book,  mine  host  Mackitchinson,  speaks  of  Hutchison 
V.  Mackitchinson  —  "a  weel  kenn'd  plea,  about  our 
backyard;  a  ganging  plea  my  father  left  me  and  his 
father  afore  left  him.     It's  been  four  times  in  afore  the 


Of  Sir  Walter  Scott  89 

Fifteen,  and  deil  ony  thing  the  wisest  o'  them  could  make 
o't  but  just  to  send  it  out  again  to  the  Outer  house. 
O,  it's  a  beautiful  thing  to  see  how  long  and  how  care- 
fully justice  is  considered  in  this  country!" 

"The  clergy,"  says  the  Antiquary,  "live  by  our  sins, 
the  medical  faculty  by  our  diseases,  and  the  law  gentry 
by  our  misfortunes."  —  But  much  of  the  Antiquary's 
conversation  is  like  certain  flowers  that  lose  their  per- 
fume when  cut.  You  must  enjoy  them  where  they 
grow. 

In  Rob  Roy,  frequent  allusion  is  made  to  the  contracts 
of  blackmail,  an  ingenious  arrangement  on  the  Border, 
by  which  the  most  powerful  scoundrel,  such  as  Rob  Roy, 
agreed  to  insure  his  customers  or  clients  against  thefts, 
for  an  annual  sum.  He  then  employed  one  half  of  his 
thieves  to  steal  and  the  other  half  to  recover  stolen 
cattle.  Those  who  received  or  paid  money  under  con- 
tract of  blackmail,  were  guilty  of  a  capital  ofifense  under 
a  statute  of  1567,  but  as  Nicol  Jarvie  observed,  "if  the 
law  canna  protect  my  barn  and  byre  what  for  suld  I 
no'  engage  wi'  a  Hieland  gentleman  that  can?  Answer 
me  that." 

Squire  Inglewood  and  his  clerk,  Jobson,  the  rascally 
attorney,  figure  in  this  book ;  the  former  being  one  of  the 
Quorum  and  Gustos  Rotulorum,  an  office  of  which  Sir 
Edward  Coke  wisely  saith,  "The  whole  Christian  world 
hath  not  the  like  of  it,  so  it  be  duly  executed."  The 
examination  of  Frank  Osbaldistone  by  these  worthies  is 
well  told.  Jobson  has  the  vStatute  law  at  his  tongue's 
end,  but  it  is  a  relief  to  know  that  finally  he  is  struck  ofif 
the  list  of  attorneys. 

Bailie  Nicol  Jarvie  is  one  of  the  best  of  Scott's  char- 
acters, and  his  description  of  life  in  the  Highlands  is 
amusing.  "Never  another  law  hae  they  but  the  length 
o'  their  dirks;   the  broadsword's  pursuer  or  plaintiff  as 


90  The  Law  and  Lawyers 

you  Englishers  ca'  it,  and  the  target  is  defender;  the 
stoutest  head  bears  langest  out;  and  there's  a  Hieland 
plea  for  ye."  Rob,  himself,  cared  little  for  legal  forms, 
for  when  he  paid  his  debt,  Jarvie  signed  the  receipt,  but 
could  not  find  two  witnesses,  as  required  by  law.  Rob 
remarked  that  no  man  within  three  miles  knew  how  to 
write,  and  threw  the  bond  in  the  fire  with  the  words, 
"That's  a  Hieland  settlement  of  accounts." 

In  Old  Mortality,  our  attention  is  arrested  by  the 
examination  and  torture  of  Ephraim  MacBriar,  the 
Cameronian  zealot,  by  the  Privy  Council  of  Scotland,  in 
which  both  judicial  and  executive  powers  were  vested. 
Scott  gives  a  most  graphic  description  of  MacBriar's 
dauntless  refusal  to  incriminate  other  persons  than  him- 
self, his  fearful  torture  with  the  boot,  his  persistent 
defiance  and  his  speedy  execution  for  treason.  It  is 
hard  to  realize  that  such  things  were  done  with  the  sanc- 
tion of  law  little  more  than  two  hundred  years  ago. 

The  Heart  of  Mid-Lothian,  that  great  prose  drama, 
marred  only  by  its  strange  anticlimax  (for  Scott  was 
generally  artistic  enough  to  stop  when  he  was  done)  is 
replete  with  interest  to  the  lawyer.  Jeanie  Deans  is  one 
of  the  greatest  heroines  of  fiction  —  yet  not  of  fiction, 
for  she  really  lived  as  Helen  Walker;  and  Scott  truly 
says,  "in  the  State  Trials  or  in  the  Books  of  Adjournal, 
every  now  and  then  you  read  new  pages  of  the  human 
heart  and  turns  of  fortune  far  beyond  what  the  boldest 
novelist  ever  attempted  to  produce  from  the  coinage  of 
his  brain." 

The  story  is  familiar.  Efifie  Deans  was  indicted  under 
the  Statute  of  1690,  c.  21,  which  in  case  of  child  murder, 
enacted  that  certain  facts  should  constitute  legal  pre- 
sumptions of  guilt,  to  wit:  the  concealment  by  the 
mother  of  her  condition,  and  the  death  of  the  child  or 
failure  co  produce  it.     The  Act  was  passed  apparently 


Of  Sir  Walter  Scott  91 

upon  the  suggestion  of  the  Court  Re  Smith  (1679) ;  1 
Fountainhall,  47,  who  referred  with  favor  to  the  Eng- 
Hsh  Statute  21  Jac.  I,  c.  27,  on  the  subject;  and  though 
afterwards  modified  in  practice,  the  law  was  not  repealed 
until  1803. 

Passing  over  the  preliminary  examination  of  David 
Deans,  and  that  wonderful  and  pathetic  scene  between 
Jeanie  and  Efifie,  on  the  eve  of  the  trial  —  Scott  never 
wrote  a  stronger  chapter  —  we  come  to  the  trial  itself. 
Scott  disclaims  the  ability  to  describe  the  forms  of  a 
Scottish  criminal  trial  so  accurately  as  to  abide  a  law- 
yer's criticism,  but  we  must  assume  that  this  statement 
was  intended  to  disguise  his  authorship,  then  anony- 
mous,^ and  that  his  account  is  technically  correct. 

Scots  law,  more  liberal  than  the  EngHsh,  allowed 
counsel  to  the  panel  or  defendant,  and  Effie's  attorney 
was  Mr.  Nichil  Novit,  her  advocate  was  Mr.  Fair- 
brother.  According  to  the  practice  in  Scotland,  the 
witnesses  were  "enclosed,"  or  separated  from  all  infor- 
mation of  what  was  passing,  and  called  into  Court  when 
their  testimony  was  desired.  The  writer  has  seen  this 
practice  followed  in  Jamaica,  even  in  a  civil  case.  When 
the  Court  opened,  Efifie,  between  two  sentinels  with 
bayonets,  was  arraigned  to  the  indictment;  she  pleaded 
not  guilty  and  both  counsel  addressed  the  Court,  speak- 
ing to  the  indictment  and  the  defense,  viz.  that  the 
prisoner  had  communicated  her  condition  to  her  sister. 
The  Court  then  pronounced  the  indictment  and  the 
defense  relevant  and  the  jury  was  empanelled;  the 
prisoner  again  pleaded,  and  then  the  witnesses  were 
heard.  It  will  be  noted  that  in  Scotland  the  accused 
is   subjected   to   a   preliminary   examination.     He  may 

^  An  anonymous  writer,  however,  evidently  an  English  lawyer,  in 
5  Law  Review  44  (1846),  severely  criticises  Scott  for  his  inaccuracy 
in  legal  allusions,  particularly  in  his  account  of  this  case. 


92  The  Law  and  Lawyers 

refuse  to  answer,  but  if  he  answers,  the  record  of  the 
examination  may  be  used  as  corroborative  evidence 
against  him  at  the  trial.  Effie's  declaration,  accordingly, 
is  read  in  full.  Her  counsel  first  offered  proof  of  char- 
acter and  then  called  Jeanie  as  his  principal  witness. 
She  was  sworn  and  certain  formal  questions  were  put 
to  her,  including  "whether  any  one  had  instructed  her 
what  evidence  she  had  to  deliver."  It  seems  possible 
from  this,  that  in  the  Scottish  practice,  counsel  are  not 
at  liberty  to  confer  personally  with  their  witnesses,  for 
Fairbrother  to  his  great  mortification,  when  he  puts  the 
crucial  question,  receives  the  reply  that  Effie  had  said 
nothing  to  her.  This  ruins  the  case,  for  Fairbrother 
can  do  nothing  but  argue  as  to  the  legal  effect  of  the 
prisoner's  declaration,  as  to  which  he  cites  learned 
authorities,  laying  stress  on  the  highly  penal  nature  of  the 
statute. 

The  Court  charges  the  jury,  who  retire  for  conference; 
upon  their  return,  they  render  a  sealed  verdict,  a  lighted 
candle  is  extinguished  and  the  verdict  of  "Guilty,  with  a 
recommendation  to  mercy"  is  read.  The  Court,  in  pro- 
nouncing sentence,  calls  the  Doomster,  a  tall,  haggard 
figure,  dressed  in  a  fantastic  garment  of  black  and  grey, 
to  repeat  the  sentence  of  death,  and  he  adds  the  words, 
"And  this  I  pronounce  for  Doom." 

But  there  is  another  vein  in  The  Heart  of  Mid-Lothian. 
Indeed  this  masterpiece  contains  many  illustrations  of 
the  close  connection  of  tender  sympathy  and  genuine 
humor.  Bartoline  Saddletree  —  called  Bartoline  per- 
haps after  Bartolus,  a  learned  Doctor  of  the  Law,  or 
perhaps  after  Bartolinus,  another  less  celebrated  Jurist, 
is  an  amateur  lawyer,  who  throughout  the  story  freely 
gives  his  opinion  upon  all  legal  questions.  His  favorite 
book  was  Balfour's  Practiques,  his  genius  lay  towards 
the  weightier  matter  of  the  law,  and  he  regularly  attended 


Of  Sir  Walter  Scott  93 

the  courts  to  the  great  neglect  of  his  business,  which 
Mrs.  Saddletree  conducted,  a  lady  well  qualified  by 
nature  and  experience  to  assume  at  a  moment's  notice 
the  leading  soprano  role  in  the  matrimonial  duet.  Bar- 
toline,  indeed,  was  like  a  Territorial  Delegate  in  Congress, 
permitted  to  talk  but  not  to  vote.  His  conversation  is 
always  interlarded  with  legal  terms,  he  discusses  in  a 
masterly  way  the  guilt  of  Captain  Porteous,  of  whose 
case  Scott  gives  a  full  account;  and  explains  to  Mrs. 
Saddletree  the  theory  of  legal  presumption  in  Effie's 
case.  "The  crime  is  rather  a  favorite  of  the  law,  this 
species  of  murther  being  one  of  its  ain  creation."  "Then 
if  the  law  makes  murders,"  said  Mrs.  Saddletree,  "the 
law  should  be  hanged  for  them;  or  if  they  wad  hang  a 
lawyer  instead,  the  country  wad  find  nae  faut." 

His  account  of  the  pleadings  in  Marsport  v.  Lackland, 
is  unfortunately  too  long  to  quote;  but  we  must  notice 
his  remark  that  the  better  the  pleadings  the  fewer 
understand  them,  and  his  cold-blooded  criticism  of  law- 
yers' fees:  "After  a',  its  but  the  wind  of  their  mouth,  it 
costs  them  naething,  whereas  in  my  wretched  occupa- 
tion of  a  saddler,  we  are  out  unconscionable  sums  just 
for  hides  and  leather."  Nor  should  we  overlook  the 
case  of  Crombie  v.  MacPhail,  involving  the  law  of  stilli- 
cide  or  easement  of  dripping  water.  Mrs.  Crombie 
owned  the  inferior  tenement,  "obligated  to  receive  the 
natural  water  drap  of  the  superior  tenement,  sae  far 
as  the  same  fa's  frae  the  heavens  on  the  roof  of  the 
neighbor's  house  and  from  thence,  by  the  gutters  or 
eaves,  upon  the  inferior  tenement.  But  the  other  night 
comes  a  Highland  quean  of  a  lass  and  she  flashes  God 
kens  what  out  at  the  eastmost  window  of  Mrs.  Mac- 
Phail's  house  —  that's  the  superior  tenement.  I  believe 
the  auld  women  wad  hae  agreed,  for  Luckie  MacPhail 
sent  down  the  lass  to  tell  my  friend  Mrs.  Crombie  that 


94  The  Law  and  Lawyers 

she  had  made  the  gardyloo  out  of  the  wrang  window,  out 
of  respect  for  twa  Highland  gentlemen  that  were  speak- 
ing Gaelic  in  the  close  below  the  right  one.  But,  luckily 
for  Mrs.  Crombie,  I  just  chanced  to  come  in  in  time  to 
break  aff  the  communing,  for  it's  a  pity  the  point  suldna 
be  tried.  We  had  Mrs.  MacPhail  into  the  Ten  mark 
Court.  The  Hieland  limmer  of  a  lass  wanted  to  swear 
herself  free  —  but  baud  ye  there,  says  I."  —  Unfor- 
tunately here  Saddletree  is  interrupted  and  we  shall 
never  know  whether  he  was  able  to  have  this  delicate 
question  of  easement  settled  by  the  Court. 

That  sombre  and  fateful  tragedy.  The  Bride  ofLammer- 
moor,  is  drawn  from  the  family  history  of  James  Dal- 
rymple,  who,  as  Lord  Stair,  was  one  of  the  most 
conspicuous  figures  in  Scottish  jurisprudence.  His 
daughter  had  engaged  herself  without  the  knowledge  of 
her  parents  and  was  compelled  by  them  to  marry  the 
suitor  of  their  choice,  with  the  fatal  results  closely  copied 
by  Scott  in  his  novel. 

Edgar,  the  Master  of  Ravenswood,  and  Lucy  Ashton 
likewise  become  betrothed  in  secret  and  she,  it  seems, 
was  under  age.  Sir  William  Ashton,  her  father,  a  lawyer, 
was  Lord  Keeper,  a  politic,  proud,  wary  and  timid  man, 
who  had  come  into  possession  of  the  ancestral  estates  of 
the  Ravenswoods  by  means  of  certain  transactions  with 
the  old  Lord,  Edgar's  father.  While  it  is  not  clearly 
stated,  he  had  apparently  advanced  money  to  Ravens- 
wood  and  had  taken  technical,  though  legal,  advantage 
of  non-payment  to  obtain  decisions  of  the  Scottish 
Courts  in  his  favor.  These  judgments,  however,  were 
open  to  attack  in  the  British  House  of  Lords,  upon 
equitable  grounds,  and  Ravenswood  was  encouraged  to 
appeal  by  his  kinsman  and  patron,  the  Marquis  of  A — . 

The  engagement  of  Lucy  was  repudiated  by  her  parents 
upon  the  authority  of  the  Levitical  Law,  as  stated  in  the 


Of  Sir  Walter  Scott  95 

30th  chapter  of  Numbers,  to  the  alleged  effect  that  a 
woman  is  not  bound  by  a  vow  from  which  her  parents 
dissent.  Ravenswood  leaves  the  country  upon  a  mis- 
sion for  his  patron,  the  Marquis;  Lucy,  under  command 
of  her  mother,  writes  to  break  her  engagement,  no  answer 
is  received,  the  day  appointed  for  her  marriage  to  Buck- 
law  is  fixed,  and  finally  arrives.  Just  too  late,  as  the 
marriage  contract  is  signed,  Ravenswood  appears,  and 
to  him  the  Reverend  Mr.  Bide-the-bent  reads  the  text 
upon  the  authority  of  which  he  had  declared  the  nullity 
of  the  prior  engagement.  "If  a  woman  vow  a  vow  unto 
the  Lord  and  bind  herself  by  a  bond  being  in  her  father's 
house  in  her  youth ;  and  her  father  hear  her  vow  and  her 
bond  wherewith  she  hath  bound  her  soul  and  her  father 
shall  hold  his  peace  at  her;  then  all  her  vows  shall  stand, 
and  every  vow  wherewith  she  hath  bound  her  soul  shall 
stand.  But  if  her  father  disallow  her  in  the  day  that  he 
heareth ;  not  any  of  her  vows  or  of  her  bonds  wherewith 
she  hath  bound  her  soul  shall  stand ;  and  the  Lord  shall 
forgive  her,  because  her  father  disallowed  her." 

In  Ivanhoe,  we  pass  over  Scott's  references  to  the  For- 
est laws,  the  legal  status  of  the  Jews,  temp.  Richard  I 
and  other  topics,  incidentally  mentioned,  until  we  reach 
the  trial  of  Rebecca  for  sorcery,  in  the  conclusion  of  the 
book.  Bois  Guilbert  had  rescued  Rebecca  from  the  blazing 
castle,  and  brought  her  to  the  Templar's  Preceptory  of 
Templestowe,  with  the  connivance  of  Malvoisin  the  Pre- 
ceptor. Beaumanoir,  the  Grand  Master,  making  an 
unexpected  visit,  is  induced  to  believe  that  Rebecca  had 
bewitched  Bois  Guilbert  by  her  magical  art,  and  the 
Grand  Master  at  once  asserts  his  power  and  intention  to 
try  Rebecca  for  witchcraft. 

The  trial  is  conducted  by  the  Grand  Master  with  elabo- 
rate ceremonial.  He  refers  to  the  rules  of  the  Templar 
order,  as  stated  by  St.  Bernard,  recites  their  infraction 


96  The  Law  and  Lawyers 

by  Bois  Guilbert,  especially  the  chapter  "Ut  fugiantur 
oscula,''  and  attributes  his  fall  to  Rebecca's  witchcraft. 
Rebecca,  interrogated  in  her  defence  and  acting  upon 
the  secret  suggestion  of  Bois  Guilbert,  demands  a  trial 
by  combat,  and  throws  down  her  glove  which  is  given  to 
Bois  Guilbert,  appointed  to  do  battle  in  behalf  of  the 
order;  all  of  which  is  engrossed  at  length  in  the  official 
minutes  of  the  Chapter.  The  trial  by  combat  is  appoint- 
ed for  the  third  day  and  Rebecca  sends  word  to  Isaac 
of  York  to  send  Ivanhoe  to  be  her  champion.  Upon  the 
fateful  day  the  lists  are  ready,  and  all  the  preparations 
described  by  Scott,  with  his  usual  zest.  Ivanhoe,  of 
course,  gallops  up  at  the  psychological  moment,  and  the 
Grand  Master  throws  Rebecca's  glove  into  the  ring  with 
the  fatal  signal  words,  "Laissez  alter'' ;  or  as  we  might 
say,  "Let  her  go!"  After  the  combat  and  the  Templar's 
death,  King  Richard  appears.  Malvoisin  is  arrested  on  a 
charge  of  treason  and  the  Templars,  Grand  Master  and 
all,  are  expelled  from  their  castle. 

What  powers  the  Knights  Templar  arrogated  to  them- 
selves in  England,  and  what  jurisdiction  they  assumed  to 
try  and  condemn  persons  who  were  not  members  of  their 
order,  are  questions  which  Scott  does  not  attempt  to 
answer,  and  we  are  in  the  position  of  the  Scotch  minister 
who,  when  asked  what  he  did  when  confronted  by  difficult 
theological  problems,  replied,  "I  look  them  straight  in 
the  face  and  pass  them  by." 

In  The  Monastery,  Scott,  in  speaking  of  the  rural  super- 
stitions concerning  fairies,  mentions  a  case  which  came 
before  him  as  Sheriff,  in  which  a  shepherd  mistook  the 
figures  in  a  Punch  and  Judy  show  for  the  "good  neigh- 
bors." He  also  refers  to  the  old  feudal  rights  of  the 
Church  in  Scotland,  and  the  obligation  of  tenants  to  have 
their  com  ground  at  the  mill  of  the  barony,  and  using  the 
technical  phrases  of  intown  and  dry  multures  and  thirlage 


Of  Sir  Walter  Scott  97 

invecta  et  illata,  intimates  that  he  talked  not  without  book, 
nor  does  he  hesitate  to  quote  a  sentence  from  the  De- 
cretals. 

In  The  Pirate,  Scott  refers  to  the  trial  of  Gow,  the 
pirate,  before  the  Admiralty  Court  in  1725,  where  Gow 
refused  to  plead,  whereupon  the  Court  ordered  his  thumbs 
to  be  squeezed  with  whip  cord  as  a  mild  preparation  for 
the  peine  fort  et  dure;  upon  which  the  pirate  finally 
consented  to  bring  himself  within  the  jurisdiction  of  the 
Court.  Scott  notices  the  Udallers  or  allodial  possessors 
of  the  land  in  Zetland  where  the  Norwegian  law  prevailed, 
and  the  scat  and  wattle,  hawkhen,  and  hagelef  or  dues 
from  the  peasants  to  the  lords.  He  refers  to  the  law  of 
wreck,  to  flotsam  and  jetsam,  to  the  right  of  property 
in  a  stranded  whale,  and  to  treasure  trove,  though  all  his 
statements  are  not  entirely  in  agreement  with  the  English 
law. 

In  The  Fortunes  of  Nigel,  the  hero  is  about  to  lose  his 
estates  by  eviction,  under  an  overdue  wadset,  which  is 
the  attractive  name  of  a  Scotch  mortgage.  He  came  to 
London  to  ask  of  King  James  I  the  repayment  of  a  large 
sum,  which  that  monarch  had  borrowed  of  Nigel's  father. 
As  that  wisest  fool  in  Christendom  was  not  such  a  fool 
as  to  pay  his  royal  debts  before  he  was  reminded  of  them, 
the  sympathetic  aid  of  his  banker,  the  celebrated  George 
Heriot  was  enlisted.  James  then  pledges  his  jewels  to 
Heriot  for  an  immediate  advance  of  cash  to  Nigel  for  his 
present  benefit,  gives  him  directions  to  negotiate  a  loan 
to  clear  Nigel's  mortgage  and  signs  his  royal  warrant  in 
addition,  as  security.  Heriot  repledges  the  jewels  to  old 
Trapbois,  the  usurer,  for  the  cash,  and  obtained  from  the 
Lady  Hermione  money  to  pay  off  the  mortgage  or  rather 
to  procure  an  assignment  of  it,  for  it  would  seem  that  the 
mortgagee  when  given  the  money,  could  be  required  to 
assign. 


98  The  Law  and  Lawyers 

Meantime,  Nigel  having  fought  with  Lord  Dalgarno, 
his  false  friend,  in  St.  James'  Park,  within  the  verge  of 
the  court,  committed  a  breach  of  privilege  —  a  Star 
Chamber  business,  he  was  told,  which  might  cost  him  his 
right  hand;  so  he  fled  to  Whitefriars  near  the  Temple, 
so  called  from  the  church  of  the  Carmelites  or  White- 
friars. This  precinct  was  known  by  the  cant  name  of 
Alsatia,  a  name  borrowed  from  the  debatable  land  be- 
tween France  and  Germany,  and  had  at  this  time  and  for 
nearly  a  century  after,  the  privilege  of  sanctuary,  unless 
against  the  WTit  of  the  Lord  Chief  Justice  or  Privy  Council. 
King  James  I  confirmed  this  privilege,  it  is  said,  by 
his  charter  in  1608.  There  is  an  interesting  account  of 
Alsatia  in  the  introduction  to  Inderwick's  Calendar  of 
the  Inner  Temple. 

In  Nigel's  flight  he  is  assisted  by  Lowestofife,  a  young 
Templar,  chiefly  distinguished  by  his  performances  on 
the  French  horn,  so  annoying  to  Counsellor  Barratter, 
who  occupies  the  chambers  beneath.  The  desperadoes 
and  vagabonds  of  Alsatia,  living  without  the  pale,  had  a 
semi -organized  government  of  their  own  which  Scott 
minutely  describes.  Nigel  lodges  with  old  Trapbois  who 
steals  the  king's  warrant  from  him,  and  is  then  murdered 
by  an  outlaw  in  an  attempt  to  steal  the  king's  jewels 
which  Heriot  had  deposited  with  the  usurer.  Martha, 
Trapbois'  daughter,  however,  escapes  with  and  marries 
Richie  Moniplies,  Nigel's  servant,  taking  with  her  all 
Trapbois'  money,  the  jewels  and  the  royal  warrant. 
Nigel  is  sent  to  the  Tower  on  a  charge  of  treason  and  the 
king  takes  this  opportune  time  to  tender  Heriot  the 
amount  of  his  loan,  and  demand  the  return  of  the  jewels. 
Heriot  cannot  produce  them,  and  the  king,  after  torment- 
ing him  for  a  while,  produces  the  jewels  which  had  been 
returned  to  him  by  Richie  Moniplies.  It  then  turns  out 
that  Dalgarno  had  formerly  deceived  the  Lady  Hermione 


Of  Sir  Walter  Scott  99 

by  a  mock  marriage,  and,  the  fraud  being  discovered,  is 
compelled  to  marry  her  legally.  This  done,  he  claims 
title  to  her  property  including  the  mortgage  which,  how- 
ever, Richie  pays  off  on  the  last  day  with  the  old  miser's 
money,  returns  the  royal  warrant  to  the  king,  and  pre- 
sents Nigel,  on  the  latter's  wedding  day,  with  the  dtle 
deeds  of  his  estate. 

In  Peveril  of  the  Peak,  the  two  Peverils  are  accused  of 
complicity  in  the  notorious  Popish  plot.  The  account  of 
Julian's  arrest  and  examination  before  Justice  Maul- 
statute,  shows  in  an  interesting  manner  the  terror  which 
pervaded  the  community  at  the  time.  Julian  is  com- 
mitted to  Newgate  and  afterwards  we  find  him  in  the 
Tower  with  his  father;  whence  they  are  soon  taken  to 
their  trial  before  the  infamous  Lord  Chief  Justice  Scroggs. 
Dr.  Titus  Oates  was  the  chief  witness  for  the  Crown,  and 
Scott's  narrative  of  the  trial  shows  that  he  had  studied 
the  history  of  the  times  and  the  State  Trials.  Fortu- 
tunately  for  the  Peverils,  Oates  was  now  becoming  un- 
popular, and  Scroggs,  by  the  private  connivance  of 
Charles  II,  charged  in  favor  of  the  Peverils,  who  were 
acquitted. 

Readers  of  Peveril  will  also  remember  the  trial  and 
execution  of  WilHam  Christian,  in  the  Isle  of  Man,  who 
had  incurred  the  enmity  of  the  Countess  of  Derby,  the 
island  belonging  at  that  time  to  the  Earldom;  but  the 
limitations  of  this  paper  do  not  permit  more  than  this 
passing  reference. 

Scott  alludes,  also,  to  the  tenures  by  which  real  estate 
was  held  in  Man.  Scott  states  that  the  transfer  of  land 
was  made  in  open  court  where  the  grantor  delivered  to 
the  grantee  a  straw  as  evidence  of  title.  Pollock  &  Mait- 
land  II,  184,  refer  to  a  similar  custom  in  some  parts  of 
England.  Citing  Coke  4  Inst.  cap.  69,  Scott  suggests 
that  "stipulation"  is  derived  from  such  a  traditio  stipulae 


100  The  Law  and  Lawyers 

or  delivery  of  a  straw,  a  fanciful  etymology  perhaps,  but 
very  much  older  than  Coke. 

In  the  story,  the  Countess  of  Derby  purchased  the  girl 
Fenella  from  her  master,  a  ropedancer,  or  mountebank, 
to  whom  she  had  been  apprenticed,  and  Scott  supports 
the  incident  by  the  case  of  Reid  v.  Scott  of  Harden, 
Fountainhall,  Vol.  I,  p.  441  (1687),  where  Reid,  who  had 
bought  a  dancing  girl  from  her  mother  for  about  twelve 
dollars,  sued  Scott,  with  whom  the  girl  had  taken  refuge. 
The  Court  quoted  the  law  of  Moses,  held  that  there  were 
no  slaves  in  Scotland,  that  mothers  could  not  sell  their 
bairns  and  dismissed  the  case.  Scott  adds  with  pride 
that  he  was  directly  descended  of  the  father  of  this 
champion  of  humanity. 

The  mainspring  of  the  plot  of  Quentin  Durward,  to 
use  Scott's  own  words,  "is  that  which  all  who  know  the 
least  of  the  feudal  system  can  easily  understand.  The 
right  of  a  feudal  superior  was  in  nothing  more  universally 
acknowledged  than  in  his  power  to  interfere  in  the 
marriage  of  a  female  vassal."  In  the  story,  the  young  and 
beautiful  Countess  Isabella  of  Croye,  a  vassal  of  the  Duke 
of  Burgundy,  invokes  the  protection  of  King  Louis  XI, 
as  lord  paramount.  Her  romantic  adventures,  perils  and 
tribulations,  and  her  safe  and  happy  deliverance,  through 
the  bravery  of  Quentin,  however  thrilling,  are  many 
leagues  distant  from  the  subject  of  this  paper. 

Readers  of  that  entertaining  story,  St.  Ronan's  Well, 
may  remember  the  managing  committee  of  that  health 
resort:  the  Man  of  Religion,  the  Man  of  Mirth,  the  Man 
of  Peace,  Captain  MacTurk;  the  Man  of  Medicine,  Dr. 
Quackleben ;  and  the  Man  of  Law,  Saunders  Meiklewham. 
The  lawyer's  nose  projected  from  the  front  of  his  broad, 
vulgar  face,  like  the  style  of  an  old  sundial,  twisted  all 
of  one  side.  He  was  on  excellent  terms  with  Dr.  Quackle- 
ben, who  alwa\s  recommended  him  to  make  the  wills  of 


Of  Sir  Walter  Scott  101 

his  patients  —  a  prudent  measure,  as  the  Doctor's  method 
was  always  to  "give  the  disease  its  own  way  at  first  and 
then  watch  the  turn  of  the  tide,"  and  he  used  to  say  that 
"robust  health  was  a  very  alarming  state,  as  most  sudden 
deaths  happen  to  people  in  that  condition." 

The  plot  of  the  story  turns  upon  the  will  of  Lord  Ether- 
ington's  uncle,  Scrogie  Mowbray,  settling  the  estate  upon 
Etherington  on  condition  that  he  should,  before  attaining 
the  age  of  25,  marry  a  young  lady  of  the  name  of  Mow- 
bray, and  by  preference  of  the  house  of  St.  Ronan's,  with 
limitation  over.  Clara  Mowbray,  answering  to  this 
description,  was  engaged  to  Francis  Tyrrel,  half  brother 
to  Lord  Etherington,  who  thereupon  arranged  a  private 
marriage  ceremony  in  which  he  personated  Francis.  The 
fraud  was  almost  immediately  detected  and  Clara  returned 
to  her  home.  The  validity  of  the  marriage  became, 
naturally,  a  grave  question,  which  Scott  solves  in  rather 
a  clumsy  fashion  by  killing  off  the  principals  instead 
of  obtaining  a  commonplace  decree  of  the  Court  annulling 
the  marriage,  which  a  lawyer  of  his  attainments  might 
surely  have  done. 

The  comedy  parts  of  the  novel  are  sustained  by  the 
great  Meg  Dods  and  her  lawyer,  Mr.  Bindloose,  who 
was  also  Sheriff  Clerk.  Meg  consults  him  profession- 
ally and  he  thinks  she  intends  to  write  her  will,  which  he 
says  is  the  act  of  a  careful  and  of  a  Christian  woman. 
"Oh!  it's  an  awful  thing  to  die  intestate  if  we  had  grace 
to  consider  it"  —  a  survival  of  the  ancient  belief  as  to 
the  danger  to  the  soul  of  one  dying  without  remembering 
the  Church.  But  Bindloose  was  mistaken,  for  Meg 
came  to  report  the  disappearance  of  Francis  Tyrrel  and 
her  fear  that  he  had  been  murdered,  with  which  theory 
Bindloose  disagreed.  "Be  reasonable,"  said  he,  "con- 
sider that  there  is  no  corpus  delicti"  —  "Corpus  delicti^ 
and  what's  that?"  said  Meg.    "Something  to  be  paid  for, 


102  The  Law  and  Lawyers 

nae  doubt,  for  your  hard  words  a'  end  in  that ;  and  what 
for  suld  I  no  have  a  corpus  delicti  or  a  habeas  corpus 
or  ony  corpus  that  I  Hke,  sae  lang  as  I  am  wilhng  to  Hck 
and  lay  down  the  ready  siller?"  The  lawyer  explains 
that  there  was  no  proof  that  the  man  had  been  slain, 
and  no  production  of  his  dead  body.  "And  that  is 
what  we  call  the  corpus  delicti.''  "Weel  then,  the  deil 
lick  it  out  of  ye,"  said  Meg,  rising  in  wrath  and  bringing 
the  consultation  to  an  end  by  calling  her  counsellor  an 
old  fool. 

There  is  probably  none  of  Scott's  novels  which  contains 
more  legal  terms  and  allusions  than  Redgauntlet,  and 
this  is  particularly  interesting  to  the  lawyer,  by  reason 
of  the  cause  celebre  of  Peebles  v.  Planestanes  {Anglice, 
Pebbles  v.  Pavement)  which  supplies  the  comedy  part 
of  the  story. 

Scott  drew  Alan  Fairford  from  his  own  experience, 
and  Peter  Peebles,  "that  dreadful  piece  of  realism,"  says 
Stevenson,  was  also  drawn  from  life;  called  Poor  Peter, 
because  a  suitor  in  forma  pauperis,  a  worn-out  litigant, 
half  crazed  by  fifteen  years'  experience  in  the  Courts, 
with  a  new  solicitor  every  year  —  he  wished  he  had  a 
new  coat  as  regularly  —  broken  down  with  poverty  and 
drink,  the  laughing  stock  of  the  Courts  and  yet  proud  of 
his  notoriety,  as  the  best  known  litigant  in  Edinburgh. 
When  asked  for  his  occupation  he  said,  "If  I  am  laird 
of  naethin  else  I  am  aye  a  dominus  litis'' — i.e.  laird  of  a 
lawsuit. 

Now,  as  soon  as  Alan  had  given  his  "bit  chack  of 
dinner"  and  had  put  on  his  advocate's  gown,  old  Fair- 
ford  plunged  his  son  into  this  whirlpool  of  a  suit  with 
the  encouraging  remark  that  the  young  advocate  was 
like  the  young  doctor,  who  must  walk  the  hospitals  and 
cure  Lazarus  of  his  sores  before  he  could  be  admitted  to 
prescribe  for   Dives  when  he  has  an  indigestion.     So 


Of  Sir  Walter  Scott  103 

Fairford  coolly  tells  Alan  that  he  must  argue  the  case  on 
appeal  upon  the  Tuesday  following,  and  overrules  his 
objection  that  his  inexperience  would  be  fatal.  "Ye 
cannot  spoil  it,  Alan,"  said  he,  "that  is  the  very  cream  of 
the  business ;  there  have  been  ten  or  a  dozen  agents  con- 
cerned and  the  case  is  come  to  that  pass  that  Stair  or 
Arniston  could  not  mend  it,  and  I  do  not  think  even  you, 
Alan,  could  do  it  much  harm."  Young  Domtoustie,  of 
that  ilk,  had  been  appointed  by  the  Court  to  represent 
the  pauper  suitor,  and  was  so  alarmed  by  the  prospect 
that  he  fled  the  town,  so  Alan  is  forced  to  take  his  place. 
The  case  was  an  action  for  an  account  between  former 
partners,  with  a  cross  action  and  divers  complications 
of  Scots  law,  including  that  mysterious  process  called  a 
multiplepoinding  which  Peebles  himself  swore,  by  the 
Regiam  Majestatem!  was  the  safest  remedium  juris  oi  a\\, 
as  it  might  even  be  conjoined  with  a  declarator  of  mar- 
riage. Scott  in  a  note  says  that  multiplepoinding  is 
equivalent  to  what  is  called,  in  England,  double  dis- 
tress, which,  to  the  common  lawyer,  explains  the  obscure 
by  the  unknown,  for  double  distress  is  itself  a  Scotch 
term  for  two  competing  executions,  Peebles  claimed 
there  was  not  a  lawyer  in  England  that  ken'd  the  nature 
of  a  multiplepoinding,  but  this  creature  of  the  law  seems 
almost,  if  not  exactly,  our  familiar  friend  Interpleader 
Bill,  disguised  in  Highland  plaid  and  breeks. 

To  add  to  Peter's  glory,  he  had  the  good  luck  to  pro- 
voke Planes tanes  to  pull  his  nose  at  the  very  threshold 
of  the  Court,  and  claimed  this  was  not  a  mere  assault, 
but  constituted  Hamesucken,  the  essence  of  which  is  to 
strike  a  man  in  his  own  home,  for  in  truth  the  Court 
might  be  said  to  be  Peter's  dwelling  place. 

It  would  be  too  long  to  tell  the  history  of  this  famous 
case,  how  Alan,  at  the  very  moment  of  success,  hurries 
away  from  the  court  room  to  succor  his  friend  Latimer, 


104  The  Law  and  Lawyers 

how  the  case  is  remitted  to  an  accountant  to  report,  and 
how  the  angry  Peebles  serves  both  the  Fair  fords,  as 
soHcitor  and  advocate,  with  a  complaint  for  malversation 
in  office.  He  pursues  Alan  over  Scotland  and  into  Eng- 
land, demanding  a  "fugie  warrant"  of  arrest  to  bring 
him  back.  When  Justice  Foxley  asks  him  if  he  will 
take  oath  that  Alan  was  a  runaway  apprentice:  "Sir," 
said  Peter,  "I  will  make  oath  of  anything  in  reason,  when 
a  case  comes  to  my  oath,  it  is  a  won  cause.  All's  fair 
when  it  comes  to  an  oath  ad  litem.'"  But  the  whole 
book  is  flavored  with  the  case,  and  it  must  be  read  as  a 
whole  to  be  appreciated. 

We  must  pass  over,  with  a  mere  reference,  other  pas- 
sages in  Redgatmtlet,  written  as  only  a  lawyer  could  write 
them;  such  as  the  law  relative  to  the  salmon-fishing 
with  nets  in  the  Solway,  as  practised  by  Geddes  the 
Quaker,  and  the  application  of  the  law  of  riot  to  those 
who  forcibly  destroyed  them;  the  differences  between 
the  laws  of  Scotland  and  England,  by  which  it  resulted 
that  Darsie  Latimer  (or  Redgauntlet)  while  safe  in  Scot- 
land, was  subject  in  England,  where  he  had  property, 
to  his  uncle,  and  guardian,  Hugh  Redgauntlet;  the  hear- 
ing of  Latimer  before  Squire  Foxley,  who  complained  that 
he  was  expected  to  carry  the  whole  law  of  England  in  his 
head  and  a  posse  comitatus  to  execute  it  in  his  pocket; 
the  smuggling  cases  to  which  Scott  alludes  as  coming 
before  his  Court  in  Selkirkshire ;  and  finally  the  tradition 
that  at  the  coronation  of  George  HI,  the  solemn  challenge 
of  Dymock,  the  hereditary  champion,  who  flung  down 
his  gauntlet  as  the  gage  of  battle,  was  accepted  by  an 
unknown  woman,  whom  Scott  for  the  sake  of  the  story 
identifies  as  Lilias  Redgauntlet,  the  romantic  Green 
Mantle  of  the  tale  —  all  these  things  and  many  more 
may  be  read  in  this  interesting  novel,  as  reference  being 
thereunto  had  may  more  fully  and  at  large  appear. 


Of  Sir  Walter  Scott  105 

The  story  of  The  Betrothed  was  suggested  to  Scott  by 
the  poem  of  the  Noble  Moringer,  which  he  had  translated 
from  the  German  many  years  before,  and  this  was  founded 
upon  that  wholesome  rule  of  the  law  that  no  man  should 
stay  away  from  home  for  seven  years,  without  writing 
a  letter  to  his  wife  to  let  her  know  that  he  is  still  in  esse. 
For  if,  after  seven  years'  absence,  he  casually  turns  up 
at  the  old  homestead,  he  must  not  be  surprised  if  he  finds 
that  his  domestic  affairs  are  not  exactly  as  he  left  them. 
The  Noble  Moringer  leaves  his  lady  to  go  on  pilgrimage 
and  pledges  her  to  wait  for  his  return  seven  years  with 
a  day  added  for  good  measure.  The  time  fairly  flew;  the 
Moringer  never  thought  of  writing  home,  and  the  last 
day  came  when  the  Moringer  is  warned  in  a  dream  of 
what  is  going  on  at  home,  and  when  he  wakes  he  finds 
himself,  by  the  kindly  aid  of  St.  Thomas,  conveniently 
near  his  own  castle.  In  pilgrim  garb  and  unrecognized ,  he 
joins  in  the  wedding  festivities  and  drops  his  wedding 
ring  in  his  wife's  cup. 

The  ring  hath  caught  the  Lady's  eye,  she  views  it  close  and  near, 
Then  might  you  hear  her  shriek  aloud,  "The  Moringer  is  here!" 
Then  might  you  see  her  start  from  seat,  while  tears  in  torrent    fell' 
But  whether  'twas  for  joy  or  woe,  the  ladies  best  can  tell. 
'  Yes,  here  I  claim  the  praise,"  she  said,  "to  constant  matron  due, 
Who  keep  the  troth  that  they  have  plight,  so  steadfastly  and  true; 
For  count  the  term  howe'er  you  will,  so  that  you  count  aright, 
Seven  twelvemonths  and  a  day  are  out  when  bells  toll  twelve  tonight. ' 

The  Bigamy  Act  of  1  Jac,  I,  c.  xi,  excepted  from  its 
penalties  those  who  married  a  second  time  when  the 
first  husband  (or  wife)  had  been  beyond  seas  for  seven 
years  — and  Tennyson  should  have  referred  to  this  in  his 
poem  of  "Enoch  Arden,"  where  Mrs.  Arden  waits  over 
ten  years  for  Enoch  to  come  back.  Very  likely  neither 
Mrs.  Arden  nor  Tennyson  himself  knew  the  law  on  the 


106  The  Law  and  Lawyers 

subject.  Poets  should  always  study  law,  as  Scott  did, 
but  if  more  of  them  did  so,  there  would  be  less  poetry 
written. 

The  Supreme  Court  of  Pennsylvania,  in  the  very 
recent  case  of  McCausland's  estate,  213  Penna.  189,  has 
applied  this  rule  of  seven  years'  absence  in  an  ingenious 
manner,  worthy  of  observation. 

The  Act  of  June  24,  1885,  P.  L.  155,  has  gone  further. 
A  seven  years'  wanderer  is  liable  on  his  return  not  merely 
to  find  his  wife  married  again,  but  his  estate  administered 
as  though  he  were  dead.  It  has  been  said  that  this  Act 
went  further.  For  whatever  views  may  be  entertained 
as  to  the  sanctity  of  the  marriage  bond,  all  persons 
are  singularly  unanimous  in  maintaining  their  rights 
of  property.  Naturally  the  operation  of  this  statute 
met  with  opposition.  In  the  celebrated  case  of  Cun- 
nius  V.  Reading  School  District,  21  Pa.  Sup.  Court  340; 
206  Penna.  469;  198  U.  S.  458;  its  constitutionality 
was  tested  in  all  the  judicial  laboratories  and  came  out 
pure  gold. 

It  has  been  often  stated  that  this  rule  of  the  presump- 
tion of  death  from  seven  years'  absence  is  of  common 
law  origin.  Such  is  or  was  the  general  impression,  but 
see  notable  matter  hereof  in  the  exposition  of  Professor 
Thayer  in  his  classical  work  on  Evidence,  whereof,  as 
Lord  Coke  would  say,  you  may  disport  yourselves  for  a 
time.  He  concludes  that  while  death  has  always  been 
inferred  from  long  absence,  the  establishment  of  the  seven- 
year  period  has  been  quite  modem. 

In  the  short  story  of  The  Two  Drovers,  Scott  gives  us 
a  tragedy  from  life.  Robin,  in  a  fit  of  vengeful  passion, 
having  killed  his  friend,  Harry  Wakefield,  was  tried  for 
murder,  and  Scott,  who  happened  to  be  present  at  the 
trial,  which  took  place  in  Carlisle,  made  a  very  powerful 
story  of  it.    He  narrates,  in  particular,  the  Judge's  charge, 


Of  Sir  Walter  Scott  107 

dwelling  on  the  fact  that  two  hours  elapsed  between  the 
injury  received  by  the  prisoner  and  his  fatal  retaliation, 
thus  showing  the  prisoner's  deliberate  intent.  The  High- 
lander, condemned  to  death,  acknowledged  the  justice  of 
his  sentence,  expressing,  with  unconscious  rhythm  the 
old  lex  talionis — "I  give  a  life  for  the  life  I  took  and 
what  can  I  do  more?" 

In  The  Talisman,  Scott  refers  to  the  Assize  of  Jerusalem, 
that  compendium  of  feudal  law  compiled  for  the  govern- 
ment of  the  kingdom  of  Palestine  when  conquered  from 
the  Saracens.  As  an  instance  of  the  attachment  of  the 
Prankish  invaders  to  their  feudal  customs  it  is  also  said 
that  Richard  I  tried  to  import  the  Forest  laws  into 
Palestine. 

Readers  of  the  novel  will  remember  that  Conrade  of 
Montserrat  stole  from  its  place  the  banner  of  England  and 
was  detected  by  the  sagacity  of  Roswal,  the  hound. 
Richard  thereupon  charged  Montserrat  with  the  offense. 
"Murderers  and  robbers  have  been  convicted,"  said  he  to 
the  King  of  France,  "and  suffered  death  under  such  evi- 
dence, and  men  have  said  that  the  finger  of  God  was  in  it. 
In  thine  own  land,  royal  brother,  and  upon  such  an  oc- 
casion, the  matter  was  tried  by  a  solemn  duel  betwixt 
the  dog  and  the  man,  as  appellant  and  defendant,  in  a 
challenge  of  murder.  The  dog  was  victorious,  the  man 
was  punished,  and  the  crime  was  confessed."  Scott 
probably  referred  to  the  celebrated  case  of  the  Dog  of 
Montargis;  but  this  incident  is  supposed  to  have  taken 
place  about  1371,  so  that  a  reference  to  it  by  King 
Richard  is  a  clear  anachronism,  though  excusable  enough 
in  the  circumstances.  Scott  describes  in  detail,  as  he 
loved  to  do,  the  judicial  combat  which  ensued  between 
Sir  Kenneth,  as  champion  of  King  Richard,  and  Con- 
rade of  Montserrat,  who  is  defeated  and  confesses  his 
treason. 


108  The  Law  mid  Lawyers 

The  dramatic  crisis  of  the  Fair  Maid  of  Perth  is  the 
ordeal  of  Bier  right  for  the  detection  of  the  murderer  of 
Oliver  Proudfute.  This  ancient  method  of  trial  was 
founded  on  the  belief  that  at  the  touch  or  even  approach 
of  the  murderer,  the  body  of  his  victim  would  bleed 
afresh.     Scott  refers  to  it  in  his  ballad  of  Earl  Richard: 

"The  maiden  touched  that  clay  cauld  corpse, 
A  drap  it  never  bled, 
The  ladye  laid  her  hand  on  him 
And  soon  the  ground  was  red." 

This  sort  of  evidence  seems  to  have  been  recognized 
in  Scottish  jurisprudence,  at  least  in  the  Auchindrane 
case,  on  which  Scott  founded  his  dramatic  poem  of 
Auchindrane,  the  corpse  bled  at  the  approach  of  the 
murderer's  innocent  daughter,  and  the  phenomenon 
naturally  attracted  attention.  As  late  as  1688,  in  the 
High  Court  of  Justiciary  at  Edinburgh,  in  the  Stands- 
field  case,  Philip  Standsfield,  suspected  of  having  mur- 
dered his  father,  touched  the  body,  when  the  blood 
instantly  gushed  forth,  which  circumstance  was  included 
in  the  libel  or  indictment  against  him.  The  case  is 
quite  fully  reported  in  11  State  Trials,  1371,  and  there 
are  some  remarks  concerning  it  in  Scott's  Chronological 
Notes  of  Scottish  Affairs  from  the  diary  of  Lord  Foun- 
tainhall.  Henry  C.  Lea  examines  the  subject  learnedly 
in  Superstition  and  Force  and  even  states  that  in 
Pennsylvania,  in  1833,  evidence  of  this  kind  was  allowed 
to  go  to  the  jury.  The  writer  remembers  that,  according 
to  the  newspaper  reports  of  a  murder  a  few  years  ago 
in  New  Jersey,  the  relatives  of  the  deceased  made  an 
attempt  to  have  a  suspected  prisoner  touch  the  body, 
and  Mr.  Lea  refers  to  some  similar  cases.  Scott  makes 
a  very  skillful  use  of  this  superstition  in  the  Fair  Maid, 


Of  Sir  Walter  Scott  109 

and  his  description  of  the  ordeal  in  the  Church  of  St. 
John  is  well  done.  Magdalen  Proudfute,  the  wife  of  the 
murdered  man,  appeals  Sir  John  Ramorny  for  the  murder 
of  her  husband  by  him  or  one  of  his  household.  One  by 
one  they  pass  by  the  bier  and  make  the  sign  of  the  cross 
on  the  dead  man's  breast.  When  it  comes  to  the  turn 
of  Bonthron,  the  real  murderer,  he  declines  the  ordeal  and 
demands,  as  he  had  a  right,  the  judicial  combat,  which  is 
accepted  by  Smith,  the  widow's  champion.  The  combat 
is  minutely  described,  and  Smith  defeats  Bonthron,  who 
is  condemned  to  be  hung. 

Scott  utilizes  in  his  story  the  feud  between  two  power- 
ful clans  who,  animated  by  the  perfervidum  ingenium 
Scotorum,  seemed  bent  on  mutual  extermination.  It 
was  finally  agreed  to  terminate  the  quarrel  in  a  quasi- 
judicial  manner  by  a  battle  between  thirty  champions 
on  each  side,  which  was  actually  fought  in  1396,  before 
King  Robert  III  and  the  whole  court  of  Scotland,  and  to 
give  greater  eclat  to  the  performance,  it  was  reserved  for 
Palm  Sunday.  They  were  lusty  champions,  true  to  their 
word,  especially  when  they  threatened  revenge.  Simon 
Glover  remarked  of  the  Highland  chief,  Gilchrist,  — 
"Saving  that  he  is  hasty  in  homicide,  I  have  nowhere  seen 
a  man  who  walketh  a  more  just  and  upright  path." 
This  combat  between  the  clans  Chattan  and  Kay  is 
examined  at  length  by  George  Neilson  in  his  Trial  by 
Combat. 

Scott  also  alludes  to  the  power  of  the  magistrates  of 
Perth  to  execute,  without  trial,  a  person  taken  red- 
handed,  according  to  what  was  called  Jedwood  justice  — 
"hang  in  haste  and  try  at  leisure"  —  something  like  the 
more  peaceful  maxim  of  our  day,  "Vote  first  and  discuss 
it  afterwards."  After  this  fashion,  Earl  Douglas  hangs 
the  murderers  of  the  Prince,  and  then  takes  the  verdict 
of  guilty  from  his  jury  of  Jedwood  men. 


110  The  Law  and  Lawyers 

Scott,  in  his  introduction  to  the  Border  Minstrelsy, 
speaks  also  of  Lydford  law,  a  similar  custom  in  Devon- 
shire :  — 

"I  oft  have  heard  of  Lydford  law, 
How  in  the  morn  they  hang  and  draw, 
And  sit  in  judgment  after." 

SO  that  the  Lynch  law  of  our  own  country  has  a  very 
ancient  and  respectable  pedigree. 

The  scene  of  Anne  of  Geier stein  is  laid  in  Switzerland 
and  France  in  the  latter  part  of  the  fifteenth  century, 
and  Scott  utilizes  for  the  framework  of  his  story  the 
Vehmic  tribunals,  which  originated  in  Westphalia  and 
exercised  such  a  mysterious  and  potent  influence.  This 
secret  and  oath -bound  court  assumed  criminal  juris- 
diction of  the  widest  range.  Thieves  and  murderers 
caught  in  the  act  were  executed  without  trial  and  without 
delay  by  Judge  Lynch's  cousin-german.  Other  offend- 
ers, including  those  who  committed  any  act  alleged  to 
offend  against  honor  or  religion,  or  even  dared  to  defy  the 
authority  of  the  Holy  Vehm,  were  arrested,  subjected 
to  rigorous  and  inquisitorial  examination,  tried  and  if 
found  guilty,  executed  by  a  tribunal,  the  very  members 
of  which  were  often  unknown  to  one  another.  In  his 
introduction,  Scott  quotes  from  Palgrave's  English 
Commonwealth  an  account  of  the  origin  and  method  of 
this  peculiar  court  which  is  stated  to  be  a  survival  from 
pagan  times,  and  connected  with  the  ancient  Saxon 
religion.  The  subject  had  long  interested  Scott.  He 
made  it  the  subject  of  his  dramas.  The  House  of  Aspen 
and  Goetz  of  Berlichingen  which  he  had  translated  from 
Goethe  in  1799,  and,  thirty  years  after,  he  returned  to 
it  in  Anne  of  Geier  stein.  Andrew  D.  White  in  his  recent 
autobiography  says  that  he  was   incited   to   the  study 


Of  Sir  Walter  Scott  111 

of  history  by  reading  Quentin  Diirward  and  Anne  of 
Geier  stein. 

In  The  Surgeon  s  Daughter,  Scott  introduces  Mr.  Law- 
ford,  the  town  clerk,  a  man  of  sense  and  humanity,  as 
well  as  law.  Mr.  Gray,  the  surgeon,  calls  for  his  aid  when 
the  Jewess,  Lilia,  is  about  to  be  arrested  for  treason. 
Despite  her  illness  and  danger  of  death,  Mr.  Lawford 
admits  that  the  warrant  must  be  executed,  "for  these 
evils,"  he  says,  "are  only  contingent,  not  direct  and 
immediate  consequences."  He  plumes  himself  not  a 
little  on  his  knowledge  of  law  and  of  the  world,  thanked 
the  Lord  that  they  had  nothing  to  do  with  English 
practice  on  this  side  of  the  Border,  and  speaks  a  word  in 
favor  of  the  Jews  —  "They  are  well  attached  to  Govern- 
ment; they  hate  the  Pope,  the  Devil  and  the  Pretender 
as  much  as  any  honest  man  among  ourselves."  To 
which  the  Surgeon  replied  that  he  could  not  admire 
either  of  those  three  gentlemen. 

In  conclusion,  the  object  of  this  paper  has  been  to 
show  how  Scott's  legal  learning  and  training  influenced 
his  writings;  perhaps  this  object  has  been  accomplished, 
although  of  necessity  much  has  been  omitted  for  want  of 
space,  as  any  student  of  Scott's  writings  may  readily 
perceive.  It  is  difficult  to  keep  the  straight  path  of  our 
subject  while  reading  those  brilliant  novels,  so  stirring 
in  narrative,  so  humorous  in  dialogue,  so  interesting  in 
historical  allusions,  so  absorbing  in  their  plots.  They 
swarm  with  life.  What  characters  Scott  has  created! 
Caleb  Balderston,  Jonathan  Oldbuck,  Peter  Peebles, 
Nicol  Jarvie,  Dugald  Dalgetty,  Meg  Merrilies,  Jeanie 
Deans,  Meg  Dods,  Diana  Vernon,  and  Rebecca  —  the 
female  faction  is  well  represented  —  and  there  are  many 
more.  By  the  Regiam  Majestatem!  these  are  real 
people,  they  are  living  now,  and  will  live  forever.  To 
read  Scott  is  almost  enough  to  make  any  man  willing  to 


112  The  Law  and  Lawyers 

be  a  Scotchman,  quite  enough  to  thrill  those  of  us  in 
whose  veins  runs  Scottish  blood,  and  much  more  than 
enough  to  make  all  of  us  lawyers  feel  proud  that  this 
Scott  was  a  lawyer.  What  a  wonderful  world  does  this 
Wizard  of  the  North  show  us  as  we  gaze  into  his  magic 
drop  of  ink!  Princes  and  peasants,  cavaliers  and  cove- 
nanters, priests  and  puritans,  lords  and  ladies  gay, 
monks  and  maidens  on  their  palfreys  white,  the  moated 
castles  and  the  dungeons  deep,  the  knights  of  long  ago 
with  "many  a  crest  that  is  famous  in  story,"  and  heralds 
"red  and  blue  and  green  with  all  their  trumpery."  And 
as  the  vision  fades  we  can  almost  hear  the  soft  Scotch 
melodies,  now  merry,  now  mournful,  echoing  from  the 
northern  hills,  while  the  poet  sings: 

"Harp  of  the  North,  farewell!     The  hills  grow  dark, 

On  purple  peaks  a  deeper  shade  descending; 
In  twilight  copse  the  glow-worm  lights  her  spark, 

The  deer,  half  seen,  are  to  the  covert  wending. 
Hark!  as  my  lingering  footsteps  slow  retire. 

Some  Spirit  of  the  Air  has  waked  thy  string! 
'Tis  now  a  seraph  bold,  with  touch  of  fire, 

'Tis  now  the  brush  of  Fairy's  frolic  wing. 
Receding  now,  the  dying  numbers  ring 

Fainter  and  fainter  down  the  rugged  dell, 
And  now  the  mountain  breezes  scarcely  bring 

A  wandering  witch  note  of  the  distant  spell  — 
And  now,  'tis  silent  all!     Enchantress,  fare  thee  well!" 


IV 

T^he  Law  and  Lawyers  of 
Honore  de  Balzac 


The  Law  and  Lawyers  of 
Honore  de  Balzac^ 

The  connection  between  Literature  and  Law,  while 
not  always  apparent  to  him  who  reads  the  first  without 
some  knowledge  of  the  second,  is  nevertheless  frequent 
and  close.  The  history  of  law  is  the  history  of  civiliza- 
tion, and  law  itself  is  only  the  blessed  tie  that  binds 
human  society  together.  The  novel  is  the  picture  of 
society,  and  must  either  implicitly  or  explicitly  be  con- 
ditioned by  the  law  of  its  time,  just  as  it  must  reflect 
social  conventions  and  customs. 

A  great  many  great  authors  have  studied  law,  though 
comparatively  few  of  them  have  known  how  to  use  their 
knowledge.  The  novels  of  Dickens  and  Scott  owe  much 
of  their  humor  and  interest  to  their  authors'  skillful  use 
of  their  information,  but  neither  Dickens  nor  Scott  sur- 
passed Balzac  in  either  information  or  skill. 

Brilliant  writers,  like  cut  diamonds,  are  many-sided. 
Balzac's  characters,  as  portrayed  in  his  novels,  included 
men  and  women  of  every  walk  of  life,  of  every  profession 
and  occupation,  of  every  grade  of  education,  of  every 
variation  of  virtue  and  vice.  He  played  upon  a  harp 
of  a  thousand  strings,  though  not  all  the  spirits  of  just 
men  made  perfect,  and  in  so  doing  he,  more  than  any 
other  novelist,  has  disclosed  in  his  writings  his  own 
views  upon  every  phase  of  the  social  organism. 

If  you  want  to  obtain  a  just  estimate  of  a  novelist  and 
his  work,  ascertain,  if  it  be  possible,  his  views  upon  the 

^A  paper  read  before  the  Pennsylvania  Bar  Association,  June  20, 
1911, 


116  The  Law  and  Lawyers 

four  subjects  which  are  of  all  the  most  difficult:  Religion, 
or  the  relation  of  man  to  the  spiritual  life;  Science,  or 
the  relation  of  man  to  the  material  world;  Woman,  or 
the  relation  of  the  sexes;  and  Law  (including  Politics), 
or  the  relation  of  man  to  society. 

In  Religion,  Balzac  professed  himself  a  devoted  adher- 
ent to  the  Catholic  Church,  which  he  styled  inLe  Medecin 
de  Campagne  (The  Country  Doctor),  "a  complete 
system  for  the  repression  of  the  depraved  tendencies  of 
mankind,"  rather  than  the  cold  negations  of  Protes- 
tantism. Yet  he  was  fair  enough  to  do  full  justice  to  the 
Jansenists,  whose  system  had  much  resemblance  to 
practical  Protestantism.  But  it  is  apparent  from  many 
passages  in  his  novels,  and  particularly  in  The  Country 
Doctor,  and  Le  Cure  de  Village  (The  Country  Curate), 
that  his  Catholicism  was  political  rather  than  religious. 
It  was  a  cult  rather  than  a  belief.  He  admired  the 
Church  as  the  conservative  power  in  the  State  and 
Society.  So  far  as  he  had  any  personal  religion  he  was 
a  deist  and  a  mystic;  and,  indeed,  he  held  that  mysticism 
was  the  pure  essence  of  Christianity.  It  is  in  the  vague 
aspirations  of  Louis  Lambert,  and  the  influences  of 
Boehm  and  Swedenborg  in  Seraphiia,  that  we  find  his 
real  beliefs. 

His  views  as  to  Science  correspond  with  his  views  as 
to  Religion.  As  in  the  latter  he  was  a  mystic,  so  in  the 
former  he  was  an  idealist. 

The  reader  of  his  life  will  be  amused  by  his  scheme  to 
invent  a  substitute  for  paper,  which  he  reproduced  in  the 
autobiographical  part  of  Lost  Illusions;  by  his  dream  of 
making  a  fortune  out  of  the  old  rubbish  in  the  Sardinian 
mines;  by  his  grotesque  plan  to  raise  pineapples  in  his 
country  garden ;  by  his  wild  project  to  transport  oak  tim- 
ber from  Russia  to  France  without  counting  the  cost  of 
freight ;  by  his  airy  visions  of  wealth  from  dairy  farming 


Of  Honore  de  Balzac  117 

and  raising  grapes  and  walnuts.  Mulberry  Sellers  would 
have  embraced  him  as  a  brother.  In  accordance  with  the 
equitable  maxim,  of  which  he  had  never  heard,  he  con- 
sidered that  as  done  which  ought  to  have  been  done.  He 
had  the  idea  —  never  mind  the  dull  details.  In  medical 
science  he  was  led  away  by  everything  that  was  new  and 
strange.  He  was  fascinated  by  the  theories  of  Mesmer, 
Hahnemann  and  Gall.  He  studied  astrology,  second  sight, 
spiritualism,  and  consulted  fortune  tellers. 

But  as  Lawton  says:  "His  scientific  knowledge  was 
superficial  in  nearly  every  branch.  It  was  his  divination 
that  was  great."  In  Modeste  Mignon  he  imagined  a  reap- 
ing machine  that  should  do  the  work  of  ten  men,  and  in 
Catherine  de  Medicis  he  anticipated  some  theories  of  mod- 
ern science.  "Everything  here  below,"  said  Cosmo,  the 
astrologer,  "is  the  outcome  of  a  slow  transformation,  but 
all  the  various  forms  are  of  one  and  the  same  matter"; 
and  this  idea  he  afterwards  elaborated  in  La  Recherche  de 
VAhsolu  (The  Quest  of  the  Absolute),  and  again  in  Louis 
Lambert:  "Everything  here  on  earth  is  produced  by  an 
ethereal  substance  which  is  the  common  element  of  var- 
ious phenomena,  known  inaccurately  as  electricity,  heat, 
light,  the  galvanic  fluid,  the  magnetic  fluid,  and  so  forth. 
The  sum  total  of  the  transformations  of  this  substance 
under  various  forms  constitutes  what  is  commonly 
known  as  matter." 

Balzac's  opinion  of  Woman,  like  all  his  opinions,  was 
essentially  conservative,  and  perhaps  best  expressed  in 
La  Femme  de  Trente  Ans  (A  Woman  of  Thirty),  UneFille 
d'Eve  (A  Daughter  of  Eve),  and  Memoir es  de  Deux  Jeunes 
Mariees  (Letters  of  Two  Brides).  Though  woman  is  the 
most  perfect  of  creations,  and  man  a  poor  creature  in 
comparison,  yet  she  is  inferior  because  she  is  ruled  by  her 
instincts  and  emotions,  and  is  distinctly  subordinate  to 
man.    To  paraphrase  the  words  of  the  great  draughtsman 


118  The  Law  and  Lawyers 

of  the  Declaration  of  Independence,  he  holds  this  truth  to 
be  self-evident  —  that  men  and  women  are  created 
unequal.  Men  know  they  are  the  superiors  of  women, 
and  women,  down  in  the  bottom  of  their  little  boots,  that 
is,  in  their  soles,  know  it  themselves.  The  state  of  celib- 
acy is  contrary  to  perfect  society;  a  childless  woman, 
he  says,  is  a  monstrosity  of  nature;  he  made  all  manner 
of  fun  of  old  maids,  and  he  maintained  that  woman's 
mission  was  to  be  the  mother  of  the  family  of  a  man,  and 
that  through  her  the  family  must  be  conserved  as  the  basic 
unit  of  human  society.  The  viaticum  of  married  life  is 
resignation  and  self-sacrifice ;  the  bonds  of  habit,  he  says, 
are  better  than  love  any  day,  while  society  substitutes 
a  lasting  sentiment  for  the  mere  passing  frenzy  of  nature 
and  creates  the  family  as  the  foundation  of  all  organized 
society.  In  short,  in  marriage  the  woman  inspires,  and 
the  man  must  work,  the  woman  must  sacrifice  her  will, 
the  man  his  selfishness. 

His  treatment  of  the  sex  problem  was  frank  and  free 
and  distinctly  different  from  the  reserve  shown  by  Eng- 
lish and  American  novelists.  The  sex  relation  is  the  core 
of  human  society,  and  human  society,  alas!  is  generally, 
like  the  apple  of  Eden,  rotten  at  the  core.  Marriage  is 
only  a  part  of  it,  and  divorce,  about  which  we  hear  so 
much,  is  a  still  smaller  fraction.  That  inexplicable  attrac- 
tion for  the  other  sex,  which  characterizes  men  and 
women,  is  doubtless  very  much  the  same  in  London  or 
Philadelphia  as  it  is  in  Paris;  and  women,  they  say,  are 
all  alike  everywhere,  even  if  some  of  them  in  some  places 
are  rather  more  alike  than  others.  Social  conventions 
however,  are  very  different  under  different  skies.  Hence 
on  the  one  hand  our  critics  freely  charge  Balzac  with 
immorality,  while  he  in  turn  was  never  tired  of  accusing 
the  English  people  of  prudery  and  hypocrisy.  Perhaps  it 
is  safest  to  say  that  Balzac  was  of  the  French,  Frenchy. 


Of  Honor e  de  Balzac  119 

Their  thoughts  are  not  our  thoughts,  nor  their  ways  our 
ways. 

Balzac,  indeed,  endeavored  to  refute  the  charge  that 
his  women  were  generally,  not  to  put  too  fine  a  point  on 
it,  not  quite  exactly  just  altogether  what  you  like  to  have 
them;  and  in  Le  P^re  Goriot  (Old  Man  Goriot),  he  act- 
ually compiled  a  list  of  his  "virtuous  women"  and  his 
"criminal  women,"  exulting  in  the  result  that  the  former 
class,  including,  however,  those  still  to  appear,  numbered 
sixty  as  against  thirty-eight  of  the  latter. 

If  with  the  one  hand  he  has  given  us  Beatrix,  Dinah 
and  Val6rie  MarnefTe,  in  the  other  he  holds  Eugenie 
Grandet,  Ursule  and  Eve  S6chard,  who  never  felt  a  throb 
of  the  heart  not  inspired  by  husband  or  children. 

I  have  taken  the  trouble  and  the  time  (which  might 
perhaps  have  been  better  employed)  to  examine  the  list 
of  the  characters  in  the  Human  Comedy,  compiled  by 
MM .  Cerfberr  and  Christophe  in  their  Compendium.  The 
total  number  of  female  characters  is  610,  and  omitting 
those  who  are  mentioned  so  casually  that  their  morals  do 
not  appear  at  all,  some  287,  I  find  there  are  141  who  are 
decidedly  shady  as  against  182  who  are  apparently  re- 
spectable. The  general  impression  received  by  the  reader, 
however,  is  that  the  majority  of  his  characters  have  no 
character  at  all. 

In  Law  and  Politics,  Balzac  again  appears  intensely 
conservative.  He  believed  in  a  constitutional  monarchy 
and  an  aristocracy  of  the  feudal  type ;  aristocracy,  he  said, 
was  the  intellect  of  the  social  system.  He  wrote  a  pam- 
phlet in  favor  of  primogeniture,  and  he  did  not  believe  in 
the  "rights  of  man,"  human  equality,  or  the  ability  of  the 
masses  of  the  people  to  govern  themselves.  One  man 
should  have  the  power  to  make  laws.  For  the  provincial 
and  middle  classes,  the  bourgeoisie,  he  had  little  but  sneer 
and  satire.    He  reiterates  in  his  novels  his  aversion  to  the 


120  The  Law  and  Lawyers 

Code  Napoleon,  "that  Draconian  work,"  as  the  leveller 
of  all  class  distinctions,  and  particularly  did  he  dislike 
those  provisions  relating  to  inheritance,  whose  effect  w  as 
the  continual  subdivision  of  estates  and  the  destruction 
of  great  houses.  Equal  rights  of  inheritance,  he  said  in  A 
Daughter  of  Eve,  kill  the  family  spirit.  His  doctrine  was : 
"Let  things  alone."  Letting  things  be  done  in  their  own 
way  is  the  secret  of  good  government,  and  the  true  cause 
of  social  sores  is  the  idleness  of  the  rich  and  immoral. 
Indeed,  he  even  said  that  philanthropy,  at  whose  roots 
he  hints  is  vanity,  is  a  sublime  error,  in  reality  the  bane 
of  society,  for  it  harms  the  mass  while  it  benefits  the 
individual ;  but  his  deep  and  sincere  admiration  of  phil- 
anthropy (in  others  than  himself)  appears  throughout 
The  Country  Doctor  and  The  Country  Curate. 

In  the  literary  treatment  of  his  subjects,  Balzac  at 
first  inclined  to  Romanticism,  but  afterwards  became 
the  exponent,  perhaps  we  should  say  the  apostle,  of 
Realism.  As  a  young  man  he  steeped  himself  in  Scott's 
novels  and  he  never  lost  his  intense  admiration  for  them. 
He  called  Scott  "The  Immortal,"  and  often  alluded  to 
the  Waverley  novels  as  full  of  scenery,  metaphor  and 
dramatic  situation.  Kenilworth  he  praised  for  romance, 
St.  Ronan's  Well  for  detail  and  finish,  Ivanhoe  for  his- 
tory, The  Antiquary  for  poesy,  and  The  Heart  of  Mid- 
Lothian  for  interest.  I  have  noted  in  at  least  eighteen 
of  Balzac's  novels  frequent  allusions  to  Scott's  char- 
acters, and  particularly  to  the  women,  such  as  Jeanie 
Deans,  Di  Vernon  (from  whom  he  evidently  modeled 
Laurence  in  Une  Tenebreuse  Affaire),  the  Fair  Maid 
of  Perth,  Queen  Elizabeth,  the  Highland  Widow,  and 
the  White  Lady  of  Avenel.  And  this  is  curious  enough, 
for  he  complains  there  is  no  passion  in  Scott ;  his  heroines, 
Di  Vernon  excepted,  are  all  alike,  and  nothing  but  duty 
incarnate.     Accordingly,  Balzac's  early  ambition  was  to 


Of  Honor e  de  Balzac  121 

write  historical  romances  in  the  style  of  Scott,  and  the 
first  book  published  under  his  own  name,  Les  Chouans, 
shows  that  he  was  able  to  do  it.  Later  on  his  novels,  Sur 
Catherine  de  Medicis,  Une  Tenebreuse  Affaire,  and 
Maitre  Cornelius  (the  last  written  to  rehabilitate  Louis 
XI  from  Scott's  description  of  him  in  Quentin  Durward), 
showed  that  he  was  able  to  continue  and  improve  his 
method.  But  stronger  still  was  his  call  to  be  the  painter 
of  contemporary  life  and  manners,  and  well  did  he  depict 
the  heterogeneous  French  society  of  the  first  half  of  the 
19th  century,  at  once  so  singularly  attractive  and  repul- 
sive, showing  life  as  it  was  lived  during  the  reactionary 
restoration  of  the  Bourbons,  and  the  bourgeoisie  mon- 
archy of  July.  Upon  his  background  he  painted  in 
brilliant  colors  man's  pitiful  struggle  against  the  savage 
cruelty  of  nature  and  society,  his  plots  show  the  gradual, 
fateful  unfolding  of  his  puppets'  characters.  That  every 
man  must  work  out  his  own  damnation,  is  not  merely  a 
profound  theological  dogma  and  a  practical  rule  of  life, 
but  also  a  fundamental  canon  of  literary  art,  amply 
illustrated  in  the  Human  Comedy,  where  over  and  over 
again  we  see  how  each  actor  commits  the  folly,  crime,  or 
sin  most  congenial  to  his  own  nature.  Selfishness, 
ingratitude,  avarice,  egotism,  vanity,  idleness,  folly, 
jealousy,  hatred,  cruelty  and  lust,  the  whole  list  of  evil 
traits,  animate  his  men  and  women,  and  in  his  own 
opinion  the  chiefest  of  them  is  avarice.  Balzac  called  a 
spade  a  spade,  and  he  was  very  fond  of  talking  about 
spades;  except  in  those  books  like  Ursule  Mirouet  and 
Pierrette,  written  expressly  for  those  whom,  in  deference 
to  the  French  language,  I  shall  call  the  June  Fillies. 
"You  young  girls,"  said  he  in  Ursule,  "are  a  public  to  be 
dreaded."  {''Vous  autres,  jeunes  filles,  vous  etes  un 
public  redoutable.")  And  again,  "I  write  for  men,  not 
for  young  girls,  but  I  defy  them  to  cite  a  single  page  in 
which  religion  or  the  family  is  attacked." 


122  The  Law  and  Lawyers 

Balzac  was  indeed  a  Realist.  He  seized  men  and 
women  in  their  homes  and  on  the  highways,  he  tore  their 
clothes  from  their  backs,  and  planted  them  in  the 
market  place  under  the  bright  sunlight  before  the  gap- 
ing crowd,  naked  and  unashamed,  not  because  they  were 
innocent,  but  because  they  gloried  in  their  guilt.  There 
they  are,  with  not  a  rag  to  conceal  their  deformities. 
We  watch  the  long  procession  pass, 

"And  trace 
A  damned  soul's  epitaph  in  every  face." 

Scott  reproduced  human  nature  in  his  novels  with  as 
much  accuracy  and  fidelity,  but  his  characters  are  as 
different  from  Balzac's  as  Raphael's  cherubs  are  from 
the  infantile  failures  preserved  in  big  bottles  in  the  ana- 
tomical museums. 

Balzac  called  himself  a  humble  doctor  of  the  Faculty 
of  Social  Medicine.  Rather  let  us  say  a  Demonstrator 
of  Pathology  and  Morbid  Anatomy.  He  takes  you  into 
the  dissecting  room,  while  Meredith  and  Thackeray 
would  tell  you  all  you  need  or  ought  to  know  by  means 
of  illustrations. 

There  is  evil  in  life,  and  literature,  to  be  truthful,  can- 
not ignore  it.  But  Art  for  Art's  sake  is  a  false  maxim, 
if  it  be  allowed  to  degenerate  into  Dirt  for  Dirt's  sake. 
The  esthetic  element  cannot  be  separated  from  the  moral. 
It  has  been  well  said  by  Mr.  Frederick  Lawton  in  his 
admirable  book  on  Balzac,  that  "the  artistic  representa- 
tion of  vice  and  crime  is  justifiable  only  in  so  far  as  the 
mind  contemplating  it  is  carried  out  and  beyond  into 
the  sphere  of  sane  emotion." 

Measured  by  this  standard,  Balzac  transgressed.  There 
is  no  excuse  for  Massimilla  Doni  and  other  tales,  and 
none  for  such   a   sordid   story  as  La  Cousine  Bette,  the 


Of  Honore  de  Balzac  123 

Limburger  cheese  of  literature,  with  Baron  Hulot  and  the 
Marnefifes.  A  man  with  a  sensitive  nostril,  as  Milton 
neatly  translates  Horace,  needs  to  hold  his  nose  as  he 
reads.  Valerie  Marneffe  is  perhaps  the  most  loathsome 
character  in  the  realm  of  fiction,  although  Balzac  claims 
that  he  did  not  invent  her.  Perhaps  not,  it  would  seem 
impossible.  Balzac,  moreover,  thus  set  a  bad  example 
for  his  successors  of  the  decadent  school,  and  those 
pornographic  writers  who  out-Balzac  Balzac  without 
possessing  his  redeeming  qualities,  those  authors  whose 
books  seem  to  be  covered  over  with  a  sticky  kind  of 
dirty  varnish  that  smells  bad  and  comes  off  when  you 
touch  it.  The  great  mass  of  this  pseudo-realism  is  false 
because  (to  quote  an  anonymous  critic)  it  treats  an  excep- 
tional condition  of  things,  and  some  particular  aspect  of 
life,  as  though  they  represented  the  general  and  the 
whole,  and  this  is  one  reason  why  young  people  who  lack 
experience  and  judgment  should  not  read  it.  Many 
of  Balzac's  other  stories  are  strong  meat,  even  if  not  as 
gamy  as  those  mentioned.  But  in  reading  Balzac  we 
must  take  him  as  he  is  and  extract  the  abundant  honey 
stored  in  the  lion's  carcass.  And  he  must  be  read  and 
judged  in  the  mass.  No  single  book  can  be  selected 
which  would  give  the  reader  a  fair  idea  of  his  genius. 
He  must  study  and  compare  very  many  or  all  of  Balzac's 
works,  and  thus  derive  a  composite  impression.  As 
Champfleury  said:  "There  are  two  ways  to  criticise 
Balzac.  First,  read  and  sit  down  and  write  an  article. 
Second,  shut  yourself  up  for  six  months  and  study  every 
detail."  Balzac  may  be  justly  compared  with  Dickens 
for  humor,  but  Dickens  was  broader  in  caricature ;  with 
Thackeray  for  satire,  but  Thackeray  was  keener;  with 
Meredith  for  analysis,  but  Meredith  was  more  subtle; 
with  Poe  for  imagination,  but  Poe  was  more  fantastic; 
with  Swift  for  cynicism,  but  Swift  was  more  caustic; 


\ 


124  The  Law  and  Lawyers 

with  De  Foe  for  realistic  narrative,  but  De  Foe  surpassed 
him  in  verisimilitude ;  with  Scott  for  vivid  description  of 
nature  and  of  men,  but  Scott  was  his  master  as  well  as 
his  model.  Yet  Balzac  combined  in  a  manner  altogether 
wonderful  all  these  varied  powers  in  such  a  way  that  his 
baptism  of  the  children  of  his  brain  as  the  Human 
Comedy  was  justified.     Everything  is  there. 

Balzac  was  born  on  May  20,  1799.  He  died  August 
18,  1850.  Some  authorities  say  it  was  August  17th,  but 
all  agree  that  he  is  dead.  At  this  time  it  makes  very 
little  difference  to  Balzac,  and  still  less  to  us,  which  is 
correct.  In  his  youth  the  great  Revolution  was  recent 
history,  and  he  saw  disorganized  society  as  it  was  rear- 
ranged by  the  First  Consul  and  the  Emperor.  As  he 
matured,  he  witnessed  the  reactionary  monarchies  of 
Louis  XVIII,  Charles  X,  and  Louis  Philippe.  His 
father  was  a  lawyer,  and  obedient  to  the  paternal  wishes 
he  studied  law,  first  for  eighteen  months  with  M.  de 
Guillonet-Merville,  an  ardent  Royalist,  and  for  an  equal 
period  with  a  notary  named  Passez.  Though  duly  quali- 
fied, he  never  practised  either  as  lawyer  or  notary.  The 
dry  details  of  the  profession  were  revolting  to  him.  You 
cannot  harness  Pegasus  to  a  plow.  He  said  to  his  sister, 
"I  should  become  like  the  horse  of  a  treadmill  which  does 
his  thirty  or  forty  rounds  an  hour,  eats,  drinks  and  sleeps 
by  rule,  and  they  call  that  living!"  But  his  time  was 
not  wasted,  for  it  is  doubtful  if  any  writer,  not  even 
excepting  Scott,  found  his  legal  knowledge  more  useful. 

His  accurate  perception  and  marvelous  memory 
enabled  him  to  reproduce  in  imperishable  words  the  men 
whom  he  had  met  and  the  Code  which  he  had  studied.  I 
have  counted  the  number  of  characters  in  Cerfberr  and 
Christophe's  Compendium  of  the  Human  Comedy  who  are 
connected  with  the  law.  There  are  29  judges  and  magi- 
strates, 23  barristers,  14  attorneys,  24  notaries  and  28 


Of  Honor e  de  Balzac  125 

office  clerks,  in  all  118.  Not  all  prominent  to  be  sure: 
some  have  only  a  passing  mention,  but  many  of  them 
carry  on  the  main  action  of  the  story.  There  are  alto- 
gether some  1540  men  in  the  Human  Comedy,  so  that 
approximately  eight  per  cent  of  his  male  characters  have 
something  to  do  with  the  law.  His  books  are  crammed 
with  legal  terms  and  references.  The  Code  was  at  his 
finger  ends;  and  as  modesty  can  hardly  be  called  the 
besetting  sin  of  us  common  lawyers,  it  will  do  us  no  harm 
to  read  these  novels  as  a  study  in  comparative  law  as 
well  as  comparative  morals. 

The  Code  Napoleon  replaced  a  tangled  complication 
of  heterogeneous  and  conflicting  laws  and  customs.  The 
famous  epigram  of  Voltaire  was  that  a  traveler  in  France 
changed  his  laws  as  often  as  he  changed  his  horses.  Na- 
poleon fused  the  old  French  customs  of  the  North  with 
the  more  developed  Roman  law  of  the  South,  in  the 
embers  of  the  Revolution,  and  from  them  cast  the  five 
codes  in  their  enduring  symmetry.  There  is  little  in  the 
Code  Napoleon  that  is  original.  It  reduced  to  order  and 
simplicity  the  pre-existing  materials,  and  therein  is  its 
claim  to  greatness.  It  could  only  have  been  accom- 
plished by  the  exercise  of  a  highly  centralized  autocratic 
power,  and  so  France  anticipated  Germany  by  a  century. 
The  Code  Napoleon  was  promulgated  in  1804,  the  Ger- 
man Code  in  1900. 

Of  course,  this  sort  of  a  code  is  little  more  than  a 
clear  and  methodical  statement  of  general  principles  and 
rules  of  practice,  and  can  only  be  successful  in  such  coun- 
tries as  France,  where  the  law  is  the  expression  of  legis- 
lative intent  rather  than  judicial  construction.  In 
France,  roughly  speaking,  the  decisions  of  the  courts  are 
not  binding  as  precedents  in  the  English  and  American 
fashion;  therefore  the  Code  is  a  relatively  permanent 
thing.     The  most  that  we  can  satisfactorily  attain  is  a 


126  The  Law  and  Lawyers 

periodical  revision  of  the  statutes.  There  are  some 
present  signs,  however,  that  the  French  courts  are  paying 
more  regard  to  precedent,  and  our  own  courts  rather  less. 
Perhaps  we  may  say  that  the  French  judges  follow 
precedent  when  they  feel  like  it,  and  our  judges  disregard 
precedent  when  they  feel  like  it  so  we  may  be  approaching 
a  judicial  entente  cordiale  based  upon  the  labor-saving 
formula,  "Every  case  should  be  decided  upon  its  own 
peculiar  facts,"  which  plan  would  be  a  great  relief  to 
seven  men  that  can  render  a  reason  or,  to  speak  more 
technically,  deliver  an  opinion,  according,  of  course,  to 
the  Rule  of  Reason. 

There  are  many  millions  of  people,  such  as  French- 
men, Germans,  Italians,  and  that  sort  of  thing,  who  con- 
sider themselves  more  than  half  civilized,  and  yet  live, 
in  their  blessed  ignorance,  under  the  Civil  Code,  or  some- 
thing like  it,  instead  of  our  common  law,  and,  strange 
to  say,  seem  to  get  along  fairly  well.  While  our  law 
has  borrowed  all  it  cared  to  from  the  civil  law,  the  cour- 
tesy has  not  been  very  greatly  reciprocated  by  these 
foreigners.  The  difference  between  the  systems  is  so 
great  that  it  is  sometimes  embarrassing  to  ascertain  the 
French  law  in  cases  that  occur  in  practice,  and  it  may 
perhaps  assist  some  of  you  to  mention  a  rule  that  I  have 
often  found  useful.  If  you  want  to  know  what  the 
French  law  would  be  in  a  given  state  of  facts,  do  not 
waste  time  in  trying  to  study  it  up,  for  you  will  never 
understand  it,  but  apply  this  simple  formula:  First,  find 
out,  if  you  can,  what  our  own  law  would  be,  or  better  still, 
ask  some  good  lawyer.  Then  take  the  exact  contrary 
to  this,  and  the  result  will  probably  be  a  more  or  less 
accurate  statement  of  the  French  law  on  the  subject. 

We  shall  not  today  adopt  this  practical  method  of 
studying  the  French  law,  but  out  of  the  wealth  of  material 
extract  a  few  examples  of  Balzac's  treatment  of  law  and 


Of  Honor e  de  Balzac  127 

lawyers.  All  of  his  books,  except  a  few  of  the  slighter 
sketches,  have  in  them  something  of  interest,  but  many  of 
them  are  really  legal  novels.  Nor  was  he  unmindful  of 
his  obligation.  He  dedicated  UEpisode  sur  la  Terreur  to 
his  former  preceptor  Merville,  his  ^^cher  et  ancien  patron,''^ 
in  terms  of  affectionate  regard,  declaring  that  it  was  from 
him  that  the  author  had  learned  enough  of  legal  pro- 
cedure to  manage  the  business  of  his  "little  world";  and 
from  this  same  Merville  he  drew  the  character  of  Der- 
ville,  as  his  ideal  of  a  competent  and  zealous  lawyer. 

Balzac's  personal  experience  with  the  law  was  not 
happy.  He  fell  in  with  many  publishers  and  fell  out 
with  all,  or  at  least  most  of  them.  He  had  many  credi- 
tors, and  the  feeling  between  him  and  them  was  one  of 
mutual  and  distinct  dislike.  The  humdrum  duties  of 
supplying  MS.  on  time,  and  paying  bills  when  they  fell 
due,  did  not  appeal  to  his  artistic  genius,  but  he  was  a 
tenacious  stickler  for  his  own  legal  rights. 

His  most  important  litigation  was  with  the  Revue  de 
Paris  in  1835,  the  editor  of  which  sent  the  proofs  of  Le 
Lys  dans  la  Vallee  (The  Lily  in  the  Valley) ,  then  in  course 
of  publication,  to  the  Revue  Franqaise  of  St.  Petersburg. 
This,  Balzac  claimed,  was  in  violation  of  their  agreement, 
and  he  took  away  his  novel  from  the  Revue  de  Paris  after 
three  parts  had  been  published.  Suit  was  brought 
against  him  to  compel  him  to  continue  the  publication, 
and  for  damages  caused  by  the  delay.  It  was  decided 
practically  in  Balzac's  favor,  though  Buloz,  the  pub- 
lisher, recovered  the  money  advanced  for  copy  not  sup- 
plied; but  as  Buloz  had  to  pay  the  costs,  this  was  not 
very  substantial.  Inspired  by  this  suit,  Balzac  drew 
up  some  years  later  a  Code  Litteraire  for  the  Soci6t4  des 
Gens-de-lettres  which,  needless  to  say,  was  never  adopted 
by  anyone  but  himself,  and  his  resentment  of  newspaper 
criticism   led   him   to   lampoon    the    jouma'ists    in    his 


128  The  Law  and  Lawyers 

Distinguished  Provincial  and  his  satirical  monograph  of 
the  Parisian  press. 

His  experience  with  another  publisher  was  not  so 
happy.  William  Duckett  obtained  a  judgment  against 
him  for  ten  thousand  francs,  and  to  escape  arrest  Bal- 
zac took  refuge  in  the  house  of  a  friend.  A  writ  server 
obtained  admission  on  the  pretense  that  he  wanted  to 
pay  Balzac  some  money,  and  when  the  great  novelist 
tripped  down  stairs  to  receive  it,  he  was  promptly  tripped 
up  with  an  arrest  warrant  for  the  debt,  which  his  gen- 
erous friend  paid  on  the  spot. 

Several  times  Balzac  was  imprisoned  under  the  con- 
scription law  for  failing  to  serve  in  the  National  Guards, 
and  he  later  on  attempted  to  evade  his  creditors  by 
executing  a  fictitious  sale  of  his  country  place.  His 
biographers  do  not  record  the  outcome  of  this  experiment, 
but  the  net  result  of  his  legal  complications  was  prob- 
ably summed  up  in  Les  Proscrits  (The  Exiles) :  "I  see 
too  much  of  the  law  not  to  know  that  it  is  well  to  have 
nothing  to  do  with  it." 

Although,  of  course,  Balzac  never  practised  law,  he 
made  himself  somewhat  conspicuous  in  1839  by  his 
efforts  to  save  the  life  of  one  Peytel,  convicted  by  cir- 
cumstantial evidence  of  the  murder  of  his  wife  and  ser- 
vant. Thackeray,  in  his  Paris  Sketch  Book,  gives  a  long 
account  of  the  case,  which  he  used  to  illustrate  the 
superiority  of  the  English  criminal  procedure  over  the 
French.  Of  Balzac's  letter  Thackeray  remarks  that  it 
was  so  very  long,  so  very  dull,  and  so  very  pompous, 
that  the  Parisian  public  gave  up  Peytel  and  his  case 
altogether. 

Notwithstanding  his  own  experience,  Balzac,  in  his 
general  views  of  law  and  lawyers,  more  nearly  resembled 
Scott  than  Dickens.  Like  Scott  he  was  a  well-read 
lawyer,    and   was   impartial   in   his    treatment    of    the 


Of  Honor e  de  Balzac  129 

profession.  He  could  separate  the  evil  from  the  good,  and 
could  contrast  the  upright  and  learned  judge  and  lawyer 
with  the  trickster  and  the  incompetent.  Dickens,  on 
the  other  hand,  could  see  no  good  in  either  the  science 
of  the  law  or  in  the  men  who  practised  it.  He  scarcely 
mentioned  law  except  in  terms  of  contempt,  and  nearly 
all  his  lawyers  are  caricatures.  With  Balzac,  I  say,  it 
was  different,  though,  to  be  sure,  his  standard  —  per- 
haps it  was  the  French  standard  —  of  professional  ethics 
is  not  quite  the  same  as  our  own.  As  examples  of  Balzac's 
opinions  I  have  collected  a  very  few  of  them,  scattered 
through  his  writings,  to  illustrate  his  impressions  of  law, 
law  students,  lawyers  and  judges. 

Justice,  he  says  in  Cesar  Birotteau,  is  the  expression 
of  society  itself;  beneath  justice  is  the  sovereign  will, 
the  laws  by  which  men  have  agreed  to  live. 

In  La  Femme  de  Trente  Ans  (The  Woman  of  Thirty), 
he  says,  "Law  is  the  doctrine,  and  custom  the  practice  of 
society." 

Henriette,  in  The  Lily  in  the  Valley,  in  her  remarkable 
letter  to  Felix,  elaborates  the  idea:  "My  dear,  these  laws 
are  not  all  written  in  a  book;  customs  also  create  laws; 
the  most  important  are  the  least  known.  Obey  the  gen- 
eral law  in  all  things  without  disputing  it,  whether  it 
hurts  or  advances  your  interest." 

These  manners  and  customs  are  often  more  cruel  than 
the  law.  As  Balzac  says  in  Une  Tenebreuse  Affaire: 
"The  manners  of  the  time  are  the  outcome  of  human 
nature,  the  law  is  framed  by  the  intellect  of  the  nation; 
{les  mcBurs,  ce  sont  les  hommes;  mais  la  hi,  c'est  la 
raison  d'un  pays;)  customs  which  are  sometimes  irra- 
tional are  therefore  stronger  than  the  law." 

He  gives  some  occasional  suggestions  as  to  legisla- 
tion. Thus  in  The  Country  Doctor:  "The  lawmaker 
should  be  in  advance  of  his  age."     "Local  differences 


130  The  Law  and  Lawyers 

should  be  studied  before  passing  laws;  every  place 
must  be  considered  separately."  This  was  probably  a 
reflection  upon  the  uniformity  of  the  Code  Napoleon. 
"We  have  something  like  forty  thousand  laws  in  France," 
said  the  Country  Doctor.  "We  might  as  well  have  none 
at  all."  Of  course  Balzac  uttered  some  of  the  conven- 
tional gibes  about  the  law.  He  repeats,  in  La  Maison 
Nucingen,  Montesquieu's  aphorism,  "Laws  are  like 
spiders'  webs;  the  big  flies  get  through,  while  the  little 
ones  are  caught."  "A  lawyer!"  cried  David  Sechard  in 
Lost  Illusions,  "the  very  word  gives  me  the  colic." 

Indeed,  Balzac  is  ungallant  in  his  comparisons.  In 
Modeste  Mignon  he  says  a  lawsuit  is  like  marriage,  because 
one  party  is  always  left  dissatisfied. 

"Law,  like  medicine,  has  its  victims.  In  the  first  case 
one  man  suffers  for  the  many,  and  in  the  second  he  dies 
for  science,"  said  the  rascally  lawyer,  Fraisier,  in  Cousin 
Pons. 

Balzac  often  notices  the  developing  effect  of  practice 
upon  lawyers.  "Society  goes  through  our  hands,"  said 
the  notary,  Crottat,  in  The  Woman  of  Thirty.  "We  see 
its  passion  in  that  most  revolting  form,  greed.  Here  it  is 
the  mother  of  a  family  trying  to  disinherit  the  husband's 
children  to  enrich  others  whom  she  loves  better ;  or  it  is 
the  husband  who  tries  to  leave  all  his  property  to  the 
child  who  has  done  his  best  to  earn  his  mother's  hatred." 

"There  are,"  said  Derville  in  Le  Colonel  Chabert,  "in 
modern  society  three  men  who  can  never  think  well  of 
it  —  the  priest,  the  doctor  and  the  man  of  law.  And 
they  wear  black  robes,  because  perhaps  they  are  in 
mourning  for  every  virtue  and  every  illusion.  The 
most  hapless  of  the  three  is  the  lawyer.  When  a  man 
comes  in  search  of  the  priest  he  is  prompted  by  repen- 
tance, by  remorse,  by  beliefs  which  make  him  interest- 
ing,  which   elevate  him   and   comfort  the   soul  of  the 


Of  Honor e  de  Balzac  131 

intercessor,  whose  task  will  bring  him  a  sort  of  gladness; 
he  purifies,  repairs  and  reconciles.  But  we  lawyers,  we 
see  the  same  evil  feelings  repeated  again  and  again; 
nothing  can  correct  them;  our  offices  are  sewers  which 
can  never  be  cleansed." 

And  so  Balzac  observes,  in  Ur stile  Mirouet,  that  Judge 
Bongrand  knew  life  well  and  had  acquired  in  his  profes- 
sion large-mindedness,  learning,  accumulated  observation, 
shrewdness  and  power  of  conversation. 

On  the  other  hand,  in  Madame  Firmiani:  "There  is 
in  a  lawsuit  an  eagerness,  a  passion,  which  may  sometimes 
blind  the  most  honest  man  alive.  Lawyers  know  how  to 
legitimize  the  most  preposterous  claims,  there  are  syllo" 
gisms  in  law  to  humor  the  errors  of  conscience,  and  judges 
have  a  right  to  make  mistakes." 

His  accounts  of  the  courts  and  prison  life  are  remark- 
ably good,  especially  in  reference  to  Vautrin's  career.  In 
the  Splendeurs  et  Miseres  des  Courtisanes,  there  is  a  most 
vivid  description  of  the  Palais  de  Justice,  and  the  hall 
known  as  the  Salles  des  Pas  Perdus,  too  long  to  be 
quoted.  All  the  minute  details  of  the  prison  cells  and 
corridors  and  offices  are  related  with  the  accuracy  of 
a  guide-book. 

Balzac  had  made  a  careful  study  from  actual  cases 
of  crime  and  the  criminal  law,  and  has  offered  a  number 
of  thoughtful  observations  about  both.  While  in  oppo- 
sition to  Victor  Hugo,  he  approved  of  the  death  penalty 
for  murder,  yet  he  does  not  fail  to  note  that  it  may  lead 
a  criminal  who  has  committed  one  murder  to  add  another 
to  his  account.  "There  is  no  such  thing,"  he  says  in  A 
Start  in  Life,  "as  a  criminal  who  is  bad  all  through"; 
and  in  Vautrin's  Last  Incarnation  he  refers  to  the  status  of 
released  convicts,  who  are  suspicious  of  society  as  society 
is  suspicious  of  them,  and  are  doomed  to  starvation  or 
crime. 


132  The  Law  and  Lawyers 

"Ignorance,"  he  says  in  Cousin  Betty,  "is  the  mother  of 
every  crime" ;  "a  crime  is  in  the  first  instance  a  defect  of 
the  reason";  a  remark  which  is  true  only  in  general; 
and  in  L'Envers  de  VHistoire  Contemporaine  he  suggests 
that  convicts  ought  to  be  placed  in  religious  institutions 
among  good  men  rather  than  their  own  kind. 

Criminal  procedure,  he  says,  in  Un  Grand  Homme  de 
Province,  (A  Distinguished  Provincial),  is  based  on  the 
rule  that  everything  that  is  probable  is  true,  which  is 
consonant  with  Bordin's  opinion  in  Une  Tenebreuse 
Affaire:  "If  the  simple  truth  is  given,  the  whole  thing 
looks  transparent,"  and  "If  the  truth  often  looks  Hke 
fiction  in  court,  fiction  on  the  other  hand  looks  like  truth ;" 
maxims  of  which  Bordin  availed  himself  freely  in  defend- 
ing Michu. 

In  L'Envers  de  VHistoire  he  gives  a  copy  of  the  indict- 
ment in  1809  of  du  Vissard  and  others,  setting  forth  all 
the  circumstances  in  such  detail  that,  although  it  was  con- 
sidered short,  it  occupies  some  twenty  pages.  He  calls  it 
"Le  Roman  de  Rob- Roy  en  France  avant  celui  de  Walter 
Scott:' 

Balzac  is  frequently  struck  with  the  inequality  and 
inadequacy  of  criminal  punishment.  "How  is  it,"  he 
exclaimed  in  Old  Man  Goriot,  "that  a  dandy  who  in  a 
night  robbed  a  boy  of  half  of  his  fortune  gets  only  a  couple 
of  months  in  prison,  while  a  poor  devil  who  steals  a  bank 
note  for  a  thousand  francs  is  condemned  to  penal  servi- 
tude?" And  in  A  Combien  V Amour  Revient  (What  Love 
Costs) :  "If  a  lawyer  makes  off  with  the  fortunes  of  a 
hundred  families  it  is  far  worse  than  killing  a  man." 

Balzac  remembered  his  student  experiences.  In  Z. 
Marcas  he  mentioned  a  students'  lodging  house  in  the 
Rue  Comeille,  "where  there  is  a  winding  staircase,  quite 
at  the  back,  lighted  below  from  the  street,  higher  up  by 
borrowed  lights,  and  at  the  top  by  a  skylight.     There 


Of  Honor e  de  Balzac  133 

were  forty  furnished  rooms,  furnished  as  students'  rooms 
are!  What  does  youth  demand  more  than  was  here  sup- 
pHed?  A  bed,  a  few  chairs,  a  chest  of  drawers,  a  look- 
ing-glass and  a  table.  As  soon  as  the  sky  is  blue,  the 
student  opens  his  windows." 

And  from  the  same  story  we  learn  that  the  profession 
was  overcrowded  then  as  now.  "In  all  the  law  courts 
there  are  almost  as  many  lawyers  as  there  are  cases.  The 
pleader  is  thrown  back  on  journalism,  on  politics,  on  liter- 
ature. Work  as  he  will  with  all  his  energy,  a  young  man 
starting  from  zero  may  at  the  end  of  ten  years  find  him- 
self below  the  point  he  set  out  from.  In  these  days,  talent 
must  have  the  good  luck  which  secures  success  to  the 
most  incompetent;  nay,  more,  if  it  scorns  the  base  com- 
promises which  insure  advancement  to  crawling  medioc- 
rity, it  will  never  get  on."  In  Old  Man  Goriot,  it  is  said 
that  not  five  advocates  in  Paris  made  50,000  francs  a 
year,  and  Peyrade,  in  Les  Petits  Bourgeois ^  said  the  streets 
of  Paris  were  fairly  paved  with  lawyers. 

Law  students  were  pretty  much  the  same  then  as  now. 
Rastignac,  in  Old  Man  Goriot,  went  to  the  lectures  simply 
to  answer  to  his  name,  and  then  left.  Through  a  reason- 
ing process  familiar  to  most  students  he  saw  the  advis- 
ability of  deferring  his  studies  to  the  last  moment  before 
going  up  for  his  examination,  and  then  cramming  his 
work  into  the  third  year  when  he  meant  to  study  in 
earnest. 

Balzac  gives  a  minute  and  interesting  study  of  a  law 
student's  experience  in  Un  Debut  dans  la  Vie  (A  Start 
in  Life),  one  of  his  most  entertaining  and  farcical  sketches. 
"Live  in  a  garret,"  said  Old  Cardot  to  Oscar  Husson; 
"go  straight  to  your  lecture  and  from  that  to  your  office; 
work  away  morning,  noon  and  night,  and  study  at  home; 
be  a  second  clerk  by  the  time  you  are  two  and  twenty,  and 
head  clerk  at  four  and  twenty."     And  when  he  enters 


134  The  Law  and  Lawyers 

Maitre  Desroches'  office,  the  attorney  introduces  him  to 
Godeschal,  the  head  clerk,  with  these  words:  "He  will 
dine  with  us  and  sleep  in  the  little  attic.  Allow  him  ex- 
actly time  enough  to  get  to  the  law  schools  and  back  so 
that  he  has  not  five  minutes  to  lose ;  see  that  he  learns  the 
code  and  does  well  at  lectures ;  give  him  law  books  to  read 
up  when  he  has  done  his  school  work."  The  boy  had  to 
get  up  at  five  to  go  to  the  office,  and  his  day  lasted  until 
bedtime ;  his  only  holiday  was  Sunday.  They  had  pleas- 
ant jokes  for  new  pupils,  one  of  which  was  an  elaborate 
scheme  to  make  each  fresh  arrival  pay  tribute  in  the  form 
of  a  bienvenue,  or  an  elaborate  breakfast  to  the  office. 
A  sham  register  of  the  High  Festivals  of  the  Minions  of 
the  Law  {Registre  architriclino-hasochien) ,  beginning  in 
1525,  and  containing  the  records  of  the  feasts  supposed 
to  have  been  given  by  each  newcomer,  was  unostenta- 
tiously laid  on  the  neophyte's  desk,  and  Frederic 
Marest,  whose  turn  it  was,  gave  them  a  bacchanalian 
feast  at  the  Rocher  de  Cancale  with  some  young  ladies 
of  his  acquaintance,  which  proved  very  unfortunate 
for  Oscar. 

The  legal  profession  in  Paris  was  divided,  as  it  now 
is  in  England,  into  the  two  branches,  and  Balzac  disap- 
proved of  the  division.  It  is  no  more  ascertainable,  he 
said  in  Les  Petits  Bourgeois  (The  Middle  Classes),  why 
the  law  gives  a  client  two  men  instead  of  one,  than  why 
an  author  needs  both  a  printer  and  a  bookseller,  over- 
looking the  obvious  reason  that  it  is  more  for  the  public 
interest  to  give  two  men  a  job  than  only  one.  The 
Association  of  Advocates  forbade  the  members  to  do 
any  legal  act  that  is  essentially  the  duty  or  right  of  the 
attorneys;  and  the  advocates,  who  had  to  be  house- 
holders, at  least  were  under  the  supervision  of  a  board 
of  control  like  our  censors,  and  Peyrade,  the  shyster 
lawyer,  was  summoned  before  it. 


Of  Honor e  de  Balzac  135 

The  lawyers  seem  to  have  in  their  fashion  enjoyed 
life.  Perhaps  they  had  dinners  together,  as  we  do.  In 
The  Seamy  Side  it  was  said  that  M.  Joseph's  face  bore 
traces  of  a  joviaHty  peculiar  to  the  notaries  and  attor- 
neys of  Paris,  and  in  Modeste  Mignon  the  jests  of  a  law- 
yer's office  were  considered  famous.  And  they  knew 
what  professional  courtesy  meant.  The  attorneys  of 
Paris,  it  is  said  in  The  Middle  Classes,  live  in  real  brother- 
hood, and  the  result  is  a  certain  facility  for  arranging 
any  matter  than  can  be  arranged.  They  obtain  from 
each  other  such  concessions  as  are  admissible,  applying 
the  proverb,  "one  good  turn  deserves  another,"  which  is 
acted  on  in  fact  in  every  profession.  The  counterpoise 
to  this  good  fellowship  lies  in  what  may  be  called  pro- 
fessional conscience;  no  consideration  can  overcome  the 
sense  of  honor  of  a  lawyer. 

Of  course,  there  were  both  sheep  and  goats  in  the 
profession.  In  Paris,  said  Blondet  in  La  Maison  Nucin- 
gen,  there  are  attorneys  of  two  classes.  There  is  the 
honest  attorney:  he  abides  within  the  law,  pushes  on 
his  cases,  neglects  no  one,  never  runs  after  business, 
gives  his  clients  his  honest  opinion,  and  makes  com- 
promises in  doubtful  cases;  he  is  a  Derville  in  short. 
Then  there  is  the  starveling  attorney,  to  whom  anything 
seems  good,  provided  he  is  sure  of  expenses;  he  will 
work  to  make  the  worse  appear  the  better  cause,  and 
take  advantage  of  a  technical  error  to  win  the  day  for  a 
rogue.  Of  the  latter  class  Fraisier  in  Cousin  Pons  is  a 
good  example,  who  thus  advised  his  client:  "Unless  you 
keep  within  the  law,  you  get  nothing.  You  know  nothing 
of  the  law ;  I  know  a  good  deal.  I  will  see  that  you  keep  on 
the  right  side  of  it,  and  you  can  hold  your  own  in  all  men's 
sight.     As  for  your  conscience,  that  is  your  own  afifair." 

A  lawyer,  says  Balzac  in  The  Country  Parson,  and 
again  in  An  Historical  Mystery,  is,  at  the  first,  judge  of 


136  The  Law  and  Lawyers 

the  client  and  the  case;  but  unfortunately  Clousier,  the 
lawyer  in  The  Country  Parson,  lost  his  practice  by  his 
adherence  to  this  maxim,  instead  of  that  asserted  by  Dr. 
Minoret  in  Ursule,  that  the  glory  of  a  clever  lawyer  is 
to  gain  a  rotten  suit.  Such  men  are  those  of  whom 
Milton  speaks  as  "allured  to  the  trade  of  law,  ground- 
ing their  principles  not  on  the  prudent  and  heavenly 
contemplation  of  justice  and  equity,  which  was  never 
taught  them,  but  on  the  promising  and  pleasing  thoughts 
of  litigious  terms,  fat  contentions,  and  flowing  fees." 

Balzac  pays  his  respects  to  clients  as  well  as  to  their 
lawyers.  They  were  conscienceless  as  well.  "I  do  not 
know,"  said  the  Marquise  d'Espard,  when  examined  as 
to  her  aiftdavit  irv  U Interdiction,  "what  my  attorney  may 
have  put  into  my  mouth." 

Attorneys,  he  says  in  The  Middle  Classes,  meet  with 
more  clients  who  tell  lies  than  who  tell  the  truth;  and 
in  Lost  Illusions:  "The  client  before  and  after  the  law- 
suit w^ould  furnish  a  subject  worthy  of  Meissonier;  there 
would  be  brisk  bidding  among  attorneys  for  the  posses- 
sion of  such  admirable  bits  of  genre.'' 

Practical  experience  of  litigation  teaches  the  la>^man 
a  good  deal.  There  is  nothing  so  little  known  as  that 
which  everybody  is  supposed  to  know,  the  law  of  the 
land,  to  wit,  and  so  he  shows  in  Lost  Illusions  how  David 
Sechard  learns  something  about  the  law  of  commercial 
paper.  No  wonder  that,  by  way  of  illustration,  he  said  in 
V Elixir  de  longue  Vie  (The  Elixir  of  Life),  "thoughtful 
as  a  man  in  a  lawsuit  on  his  w^ay  to  Court."  Every  one 
knows  how  sometimes  we  have  to  give  our  clients  a  good 
talking  to,  although  as  Latoumelle,  the  notary  in  Modeste 
Mignon  said,  we  fling  their  secrets  into  the  Styx  w^hich 
every  lawyer  keeps  handy  for  them.  So,  in  The  Bache- 
lor's Establishment,  Desroches,  the  attorney,  gave  the 
dreadful    Philippe    Bridau   one  of   those   unansw^erable 


Of  Honor e  de  Balzac  137 

sermons,  In  which  a  lawyer  places  things  in  their  true 
light,  using  the  crudest  language  to  epitomize  the  facts 
of  his  clients'  conduct,  to  analyze  their  ideas,  and  to 
reduce  them  to  the  simplest  expression. 

A  lawyer's  apparent  indifference  sometimes  surprises 
the  agitated  client.  Derville,  when  consulted  by  Birot- 
teau,  was  staid  and  self-possessed  as  is  the  wont  of  the 
men  of  law,  accustomed  as  they  are  to  the  most  harrow- 
ing disclosures.  Birotteau  felt  as  a  new  thing  in  his 
experience  this  necessary  coolness;  it  was  like  ice  to  an 
excited  man  telling  the  story  of  his  misfortunes. 

But  this  coolness  is  better  for  the  client.  Balzac  re- 
marks in  his  description  of  the  trial  in  Une  Tenehreuse 
Affaire:  "The  lawyers'  faces  inspired  confidence;  a  doctor 
never  allows  a  patient  to  see  his  misgivings,  and  a  lawyer 
always  shows  his  client  a  hopeful  countenance.  These 
are  the  rare  cases  when  insincerity  becomes  a  virtue." 

Balzac's  pictures  of  lawyers  and  their  offices  abound 
in  his  novels,  all  characterized  by  his  minute  attention  to 
detail.  In  Cousin  Pons,  he  thus  describes  the  shyster, 
Fraisier,  and  his  offices :  '  'The  room  was  a  complete  picture 
of  a  third-rate  solicitor's  office,  with  the  stained  wooden 
cases,  the  letter  files  so  old  that  they  had  grown  beards, 
the  red  tape  dangling  limp  and  dejected,  the  pasteboard 
boxes  covered  with  the  gambols  of  mice,  the  dirty  floor, 
the  ceiling  yellow  with  smoke."  There  is  a  similar  unin- 
viting description  of  Claparon's  business  office  in  Cesar 
Birotteau:  "Fraisier  was  small,  thin  and  unwholesome 
looking;  his  red  face,  covered  with  an  eruption,  told  of 
tainted  blood.  A  wig  pushed  back  on  his  head  displayed 
a  brick-colored  cranium  of  ominous  conformation.  One 
might  have  thought  there  was  pestilence  in  the  air." 

Regnault  in  La  Grande  Brethche  is  thus  depicted:  "A 
man  tall,  slim,  dressed  in  black,  hat  in  hand,  who  came  in 
like  a  ram  ready  to  butt  his  opponent,  showing  a  receding 


138  The  Law  and  Lawyers 

forehead,  a  small,  pointed  head  and  a  colorless  face  of  the 
hue  of  a  glass  of  dirty  water.  He  wore  an  old  coat  much 
worn  at  the  seams,  but  he  had  a  diamond  in  his  shirt  front 
and  gold  rings  in  his  ears." 

Desroches  is  described  in  Un  Menage  de  Gargon  as 
having  a  harsh  voice,  a  coarse  skin,  pitiless  eyes,  and  a 
face  like  a  ferret's,  licking  the  blood  of  a  murdered  chicken 
from  its  lips. 

One  of  the  characters  in  La  Maison  Nucingen  thus 
described  this  same  Desroches:  "He  used  to  make  me  feel 
that  I  had  met  a  tiger  escaped  from  the  Jardin  des  Plantes. 
He  was  lean  and  red  haired,  his  eyes  were  the  color  of 
Spanish  tobacco,  and  his  complexion  was  harsh.  He 
looked  cold  and  phlegmatic.  He  was  hard  upon  the 
widow,  pitiless  to  the  orphan,  and  a  terror  to  his  clerks. 
Learned,  crafty,  double-faced,  honey-tongued  and  never 
flying  into  a  passion." 

The  rascally  Goupil  in  Ursule  Mirouet  had  short  legs, 
a  broad  face  with  a  mottled  skin,  a  hooked  nose,  twisted 
crosswise  from  right  to  left,  and  thin,  reddish  hair.  His 
arms  were  over  long,  ending  with  huge  hands  that  were 
seldom  clean.  With  worn-out  shoes  and  thread-bare, 
greasy  clothes,  nothing  was  lacking  in  the  aggregate  of 
sinister  details. 

The  notary  in  France,  and  especially  in  Paris,  is  a  very 
important  personage,  and  middle-class  men  believe  a 
notary  far  rather  than  an  attorney.  A  Paris  citizen,  said 
Balzac,  is  not  without  some  alarm  when  he  goes  to  see 
his  attorney,  while  he  always  goes  with  fresh  pleasure  to 
his  notary,  and  admires  his  wisdom  and  good  sense. 
He  is  the  man  of  business  par  excellence,  and  enjoys  a 
lucrative  monopoly  in  his  supervision  of  deeds  and  mort- 
gages, marriage  contracts,  wills,  articles  of  incorporation, 
etc.  The  notaries  form  an  exclusive,  self-prepetuating 
association,  something  like  our  Stock  Exchange,  and  now 


Of  Honore  de  Balzac  139 

in  Paris  number  but  122.  When  a  notary  dies  or  retires, 
his  business  is  sold  and  his  successor  takes  over  and  pre- 
serves the  records  and  papers  of  the  office.  Their  cUents 
are  protected  by  this  saleable  value  of  their  office,  and 
apparently  they  are  obliged  to  make  a  despoit  for  their 
clients'  further  protection.  Balzac  refers  to  this  several 
times  in  Cesar  Birotteau  and  Les  Petits  Bourgeois.  Notaries 
cannot  speculate  on  their  own  account.  Balzac  fre- 
quently refers  to  this  also  and  their  fraudulent  tricks 
to  circumvent  the  law,  especially  in  Les  Petits  Bourgeois. 

Balzac  has  a  great  deal  to  say  about  judges,  and  most 
of  his  judges  are  honest  men,  like  Popinot  in  The  Commis- 
sion in  Lunacy,  and  old  Blondet  in  The  Cabinet  of  Antiques. 
The  latter's  integrity  was  as  deeply  rooted  in  him  as  his 
passion  for  flowers ;  he  knew  nothing  but  law  and  botany. 
He  would  have  interviews  with  litigants,  listen  to  them, 
chat  with  them  and  show  them  his  flowers;  he  would 
accept  rare  seeds  from  them,  but  once  on  the  bench  no 
Judge  on  earth  was  more  impartial. 

The  allusion  here  made  is  to  the  practice  which  up 
to  the  Revolution,  permitted,  or  at  least  condoned,  the 
personal  solicitation  of  judges  and  even  the  making  of 
presents  to  them  by  litigants,  like  the  custom  in  England 
which  caused  Bacon's  downfall.  Indeed,  the  office  of 
Judge  in  France  was  formerly  saleable  like  an  estate.  In 
Balzac's  novels  there  are  frequent  allusions  to  the  in- 
fluence used  outside  of  the  Courtroom  upon  the  Judge. 
Judge  Camusot,  for  example,  was  completely  under  his 
wife's  influence,  and  the  ladies  generally  seem  to  have  been 
very  successful  in  this  irregular  practice.  In  The  End 
of  Evil  Ways,  the  Countess  de  Serizy  called  on  the  Judge 
to  interview  him  as  to  Lucien  de  Rubempre,  and  actually 
seized  the  notes  of  his  examination  and  threw  them  into 
the  fire.  The  ladies,  said  Balzac,  have  a  code  of  their  own, 
and  laugh  at  statutes  framed  by  men.    "If  that  is  a  crime. 


140  The  Law  and  Lawyers 

said  the  countess,  "well,  monsieur  must  get  his  odious 
scrawl  written  out  again." 

To  mention  those  of  Balzac's  novels  that  possess  legal 
interest  is  almost  to  repeat  the  catalogue  of  all.  To  get 
over  the  ground  we  must  proceed  hoppibus,  skippibus, 
jumpibusque,  a  Latin  expression  you  may  hunt  for  in 
Cicero.  Of  those  most  important  may  be  mentioned 
these:  The  Country  Parson  derives  its  dramatic  interest 
from  the  murder  of  the  miser,  Pingret,  by  Tascheron 
during  his  intrigue  with  Veronique  Graslin.  He  was 
convicted  through  circumstantial  evidence;  and  it  is 
curious  to  note  that  the  jury  were  not  segregated,  and 
that  Graslin,  who  was  one  of  the  jurymen,  talked  the 
case  over  with  Veronique,  his  wife,  who  suggested  her 
lover's  acquittal,  on  the  ground  that  if  Tascheron's  life 
was  spared,  the  relatives  of  the  murdered  man  might  re- 
cover his  money.  Seven  of  the  jury,  therefore,  voted  to 
acquit  and  five  to  convict;  the  judges  voted  with  the  mi- 
nority, and  Tascheron  was  convicted.  (This  was  in  1829, 
before  the  law  of  May  13,  1836.)  His  execution  took 
place  at  the  time  of  the  birth  of  Veronique's  child,  and 
the  remainder  of  the  book  is  an  attempt  to  work  out  the 
change  uTought  in  Veronique's  character  through  the 
influence  of  the  Country  Parson.  Her  dramatic  confes- 
sion at  her  death  reminds  the  reader  of  Hawthorne's 
Scarlet  Letter. 

Ursule  Mirouet,  one  of  Balzac's  masterpieces,  is  dis- 
tinctly a  legal  novel.  Ursule,  the  orphan  niece  and  ward 
of  Dr.  Minoret,  and  intended  by  him  to  be  his  universal 
legatee,  was,  naturally,  the  object  of  the  enmity  of  his 
heirs  at  law,  among  whom  Ursule  was  not  included,  on 
account  of  her  father's  illegitimacy.  This  gave  Dionis, 
the  notary,  an  opportunity  to  give  a  learned  opinion  to 
the  heirs  at  law  on  the  law  of  inheritance  by  illegitimates, 
referring  to  Articles  757,  908  and  911  of  the  Code,  and 


Of  Honor e  de  Balzac  141 

the  decisions  of  the  Court  of  Appeal  and  the  Royal 
Court  of  Paris,  against  which  the  head  clerk,  Goupil, 
cited  a  judgment  delivered  by  the  Supreme  Court  at 
Colmar  in  1825.  When  a  mortgage  is  given  to  Dr. 
Minoret  to  secure  his  advances  to  Savinien,  the  formali- 
ties are  all  mentioned,  even  to  the  registration  fees.  And 
when  Dr.  Minoret  settles  his  account  with  Ursule,  as 
her  guardian,  a  family  council  is  held  in  accordance 
with  the  Code.  Dr.  Minoret  being  aware  that  a  will  in 
Ursule's  favor  might  be  disputed,  and  that  his  adoption 
of  her  might  give  rise  to  litigation,  invested  her  money  in 
consols  payable  to  bearer,  and  hid  them  in  a  volume  of 
the  Pandects,  a  book  pretty  sure  not  to  be  opened.  He 
then  wrote  a  will  in  favor  of  the  Vicomte  de  Portenduere, 
Ursule's  fiance,  and  explained  his  plan  to  Ursule  in 
a  letter  hidden  in  a  cabinet.  The  doctor's  nephew  stole 
the  will  and  letter  and  the  certificates,  and  there  is  related 
in  detail  the  inventory  and  legal  settlement  of  the  estate, 
and  the  final  discovery  of  the  theft. 

In  La  Recherche  de  VAhsolu  (The  Quest  of  the  Abso- 
lute), Balzac  introduces  very  many  points  of  law.  The 
rights  of  children  in  their  parents'  estate,  and  the  eman- 
cipation of  a  minor  by  marriage  or  by  consent  of  the 
family  council  if  eighteen  years  of  age  under  Articles  476 
and  478  of  the  Code,  and  the  minor's  disability  under 
Article  484  to  sell  her  real  estate,  are  important  in  the 
framework  of  the  story.  In  like  manner,  in  Albert 
Savarus,  Rosalie  de  Watteville  was  emancipated  before 
twenty-one. 

Cesar  Birotteau  is  the  story  of  the  successful  but 
simple-minded  perfumer,  who  amassed  a  fortune  by  his 
lotions,  and  then  ended  in  bankruptcy  through  the 
fraudulent  land  schemes  of  the  notary,  Rogron.  They 
had  straw  men  in  those  days.  Balzac's  own  financial 
troubles  doubtless  induced  him  to  make  a  special  study 


142  The  Law  and  Lawyers 

of  the  bankrupt  law.  We  have  the  filing  of  the  petition, 
the  publication  of  the  decree  in  the  Gazette,  the  filing  of 
the  schedule,  the  appointment  of  the  agent,  the  prepara- 
tion of  the  inventory,  Birotteau's  deprivation  of  civil 
rights,  the  meeting  of  creditors  and  appointment  of 
trustees,  the  concordat  or  composition,  and  the  bank- 
rupt's discharge;  all  are  set  forth  in  such  elaborate 
detail  that  the  story  has  been  styled  a  handbook  of  the 
Commercial  Code.  Though  Birotteau  by  his  bank- 
ruptcy lost  his  civil  rights,  in  the  end,  crushed,  insulted 
and  yet  forgiving,  he  is  rehabilitated  through  the  efforts 
of  his  friends  and  dies  dramatically  after  his  triumphant 
return  to  the  Exchange.  In  Cesar  Birotteau  there  are  also 
many  details  of  landlord  and  tenant  law,  and  building 
contracts,  so  intricately  described  that  it  is  impossible 
to  condense  them. 

Cousin  Pons  was  a  childlike  old  musician,  with  a 
famous  collection  of  valuable  paintings.  The  novel  is 
entirely  taken  up  with  the  conspiracy  of  the  infamous 
Doctor  Poulain  and  the  lawyer,  Fraisier,  who  try  to 
induce  him  to  make  a  will  in  favor  of  his  dreadful  nurse. 
La  Cibot;  and  after  he  died,  leaving  a  will  in  favor  of  his 
friend  Schmucke,  the  intrigues  are  related  by  which  the 
legatee  was  defrauded  of  his  rights.  In  this  story,  men- 
tion is  made  of  several  points  of  testamentary  law:  that 
a  physician  in  attendance  on  a  testator  cannot  accept  a 
bequest.  Article  909  of  the  Code;  that,  in  the  absence  of 
heirs  in  the  direct  line,  a  testator  may  dispose  of  his 
entire  property  by  will.  Article  916;  and  there  are 
described  different  ways  of  making  wills,  which  may  be 
either  dictated  to  a  notary  in  the  presence  of  witnesses, 
or  holographic,  i.e.,  written  out,  dated  and  signed  by  the 
testator  himself.  It  is  curious  to  note  the  fidelity  to 
detail  with  which  Balzac  describes  the  formalities  of  the 
registration  of  death  (the  Acte  de  Dices)  with  witnesses, 
under  Article  77  of  the  Code. 


Of  Honore  de  Balzac  143 

Les  Petits Bourgeois  (The  Middle  Classes)  is  so  crammed 
throughout  with  the  sordid  legal  schemes  of  La  Pey- 
rade  and  Cerizet,  with  constant  references  to  many  titles 
of  the  law,  that  it  is  impossible  to  do  justice  to  it  here. 
In  fact  it  contains  sufficient  material  for  a  separate 
paper.  Les  Illusions  Perdues  (Lost  Illusions)  abounds 
with  commercial  and  patent  laws,  suits,  executions  and 
interpleaders,  and  arrests  for  debt.  It  appears  that 
arrears  of  rent  are  a  preferred  claim  in  bankruptcy ;  and 
that  articles  of  partnership  must  be  filed  with  the  Tri- 
bunal of  Commerce.  (See  Article  42  of  the  Commer- 
cial Code.)  We  learn  a  good  deal  about  the  difference 
between  the  Paris  and  country  lawyers,  the  law  of  costs 
and  the  method  of  protesting  drafts.  As  old  Sechard 
said,  "See  what  comes  of  knowing  how  to  write  your 
name." 

In  Esther,  it  is  noted  that  by  writing  Bon  pour  you 
simply  promise  to  pay ;  doubtless  Article  1326  of  the  Code 
is  alluded  to.  The  word  Accepte  constitutes  a  bill  of 
exchange,  (Article  122,  Commercial  Code),  and  makes 
you  liable  to  imprisonment  for  five  years.  Cerizet  in 
Les  Petits  Bourgeois  made  La  Peyrade  sign  a  bill  in  this 
way.  Le  Cabinet  des  Antiques  (The  Collection  of  Curi- 
osities) is  the  story  of  Notary  Chesnel's  devotion  to  his 
family  clients,  and  is  filled  with  the  law  of  forgery,  from 
which  we  learn  that  in  France  the  charge  of  forgery  may 
be  brought  by  a  private  individual  and  can  be  settled  out 
of  Court  if  the  money  is  returned  to  the  person  defrauded. 
In  Le  Cure  de  Tours  (The  Abbe  Birotteau),  we  have  the 
simple  old  Abbe  and  his  legal  tangles  with  his  landlady, 
the  artful  old  maid  who  got  him  to  sign  an  agreement  to 
give  up  his  furniture  if  he  left  the  house,  and  then  forced 
him  to  go.  Les  Comediens  sans  le  Savoir  (The  Unconscious 
Comedians),  might  have,  as  a  second  title.  How  to  Win  a 
Lawsuit.     Gazonal,  a  man  of  the  South,  comes  to  Paris 


144  The  Law  and  Lawyers 

about  his  pending  lawsuit,  apparently  a  case  of  eminent 
domain  as  we  would  call  it,  meets  his  old  friends  de  Lora 
and  Bixiou,  with  whom  he  did  the  town,  and  discovers 
that  the  way  to  succeed  in  litigation  is  to  reach  the  Court 
through  the  ladies  and  politicians  who  enjoy  the  judicial 
confidence.  After  Gazonal  had  given  promissory  notes 
to  Miss  Jenny  Cadine,  the  mistress  of  Massol,  who  had 
the  case  decided  in  his  favor,  he  had  his  notes  handed 
back  to  him  by  de  Lora,  and  the  farce  ended  in  a  roar  of 
laughter. 

In  Eugenie  Grandet,  the  author  takes  pains  to  explain 
the  difference  between  liquidation  and  bankruptcy,  either 
voluntary  on  the  bankrupt's  own  petition,  or  involun- 
tary upon  the  peticion  of  his  creditors.  Liquidation  is 
not  bankruptcy;  it  is  a  disgraceful  thing  to  be  a  bankrupt 
but  liquidation  reflects  no  discredit,  as  it  can  be  privately 
arranged  without  recourse  to  the  Tribunal  of  Commerce. 
The  old  miser,  Grandet,  undertook  to  liquidate  his 
brother's  affairs,  with  the  consent  of  the  creditors,  and 
managed  so  well  by  tiring  them  out  for  five  years  that  he 
made  a  very  good  thing  out  of  it  for  himself;  but  in  the 
end,  Eugenie,  who  inherited  his  fortune,  paid  all  the  debts 
in  full  for  the  sake  of  her  worthless  cousin,  Charles.  So 
Charles  Mignon,  in  Modes te  Mignon,  underwent  a  volun- 
tary liquidation  in  this  way  and  afterwards  returned  to 
Havre  a  millionaire. 

Un  Homme  d' Affaires  (A  Man  of  Business)  is  a  little 
sketch  showing  how  a  sharp  lawyer  got  the  better  of  the 
sharp  spendthrift  de  Trailles,  by  his  greater  familiarity 
with  the  procedure  in  attachments. 

In  Cousin  Betty  there  are  numerous  legal  details. 
Whereas  a  Frenchman  might  be  imprisoned  but  five  years 
for  debt,  a  foreigner  remained  in  prison  for  life,  or  until 
his  debts  are  paid,  so  Cousin  Betty  had  Steinbock,  who 
was  a  Pole,  arrested  by  a  cunning  little  trick,  in  order  to 


Of  Honore  de  Balzac  145 

gratify  her  jealousy.  Victorin  Hulot  appears  as  the  type 
of  the  honest  lawyer,  who  studied  his  cases  thoroughly  and 
would  not  accept  every  brief  that  was  offered  him.  The 
unspeakable  Valerie  after  her  husband's  death  remains 
chastely  a  widow  ten  months,  in  accordance  with  Article 
228  of  the  Code,  and  the  provisions  of  her  marriage  con- 
tract with  Crevel,  drawn  up  by  Berthier,  are  given  in 
detail.  He  even  notes  that  a  marriage  contract  costs 
fifteen  francs,  and  the  marriage  costs  thirty,  which  ex- 
pense caused  many  poor  people  to  ignore  the  legal  for- 
malities. And  in  this  book,  as  in  many  others,  Balzac 
refers  to  Article  913  of  the  Code  that  forbids  a  man  from 
giving  away  more  than  half  of  his  estate  if  he  leaves  one 
child,  more  than  a  third  if  he  leaves  two  children,  or  more 
than  a  quarter  if  he  leaves  three  or  more. 

Pierrette  is  the  touching  story  of  a  little  orphan  girl, 
whose  ill  treatment  by  her  guardian,  Rogron,  gave  rise  to 
lawsuits  only  terminated  by  her  death.  The  law  regu- 
lating guardianships  through  the  family  council  is  dis- 
cussed, including  the  appointment  of  a  luteur  suhroge, 
or  deputy  guardian,  who  in  Pierrette's  case  was  Auffray, 
the  notary,  to  whom  the  court  gave  the  custody  of  Pier- 
rette after  Rogron 's  cruelty  to  her  became  known.  Under 
Article  421  of  the  Code,  the  deputy  summoned  a  family 
council  of  six  members,  who  were  appointed  by  the 
justice  of  the  peace  as  their  legal  president.  Normally, 
under  Article  407,  this  should  be  composed  of  three 
relations  on  the  father's  side  and  three  on  the  mother's; 
but  as  this  was  impossible,  the  justice,  under  Article 
409,  summoned  family  friends  in  his  discretion.  The 
council  dismissed  Rogron  as  guardian  and  appointed 
Auffray  as  Pierrette's  guardian  and  Ciprey  deputy  guar- 
dian. But  Pierrette  died  before  her  lawsuits  were  ended, 
and  it  was  never  legally  determined  how  far  her  death  was 
due  to  the  cruelty  of  her  unnatural  guardian. 


146  The  Law  and  Lawyers 

Une  Tenebreuse  Affaire,  sometimes  called  A  Gondre- 
ville  Mystery,  is  the  narrative  of  the  abduction  of  Malin 
in  the  time  of  the  First  Empire,  and  a  large  portion  of  the 
book  is  occupied  with  the  very  vivid  account  of  the  trial 
of  Michu,  his  conviction,  the  ineffectual  appeal  to  Napo- 
leon, and  his  execution,  all  under  procedure  anterior  to 
the  Criminal  Code. 

In  Ou  Menent  les  Mauvais  Chemins  (The  End  of  Evil 
Ways),  and  La  Dernier e  Incarnation  de  Vautrin,  Balzac 
gives  us  a  picture  of  society  from  the  viewpoint  of  the 
criminal.  He  relates  in  a  manner  absolutely  true  in  its 
details  criminal  procedure,  the  habits  and  methods  of  the 
criminals  of  the  day,  their  peculiar  code  of  honor,  and 
repeats  their  very  slang.  These  books  and  L  Histoire  des 
Treize  (The  History  of  the  Thirteen),  with  Ferragus, 
seem  to  be  the  origin  of  the  police  novel  of  later  times. 

The  examination  of  Lucien  and  Vautrin  by  the  Juge 
d' Instruction  in  The  End  of  Evil  Ways,  and  of  Tascheron 
in  The  Country  Parson,  in  order  to  discover  the  facts  of 
the  case,  show  the  source  from  which  the  police  of  our 
times  may  have  derived  the  "third  degree,"  though,  indeed 
the  English  State  Trials  disclose  a  startling  similarity. 

Balzac  approved  of  this  method  of  ascertaining  guilt. 
Innocent  men,  he  says,  are  quickly  released;  and  while 
public  opinion  condemns  persons  under  suspicion,  it  is 
favorable  to  those  committed  for  trial. 

Le  Contrat  de  Mariage  (The  Marriage  Settlement) 
is  the  story  of  a  very  unhappy  marriage  with  too  much 
mother-in-law.  As  its  title  implies,  the  interest  of  the 
tale  centers  about  the  sordid  business  negotiations 
between  young  Salonet  and  old  Mathias,  the  two  nota- 
ries, representing  respectively  the  bride  and  the  groom. 
Balzac  never  WTote  anything  more  entertaining. 

In  The  Country  Doctor,  Balzac  illustrates  very  neatly 
the  French  law  under  Article  1583  of  the  Code,  according 


Of  Honore  de  Balzac  147 

to  which  a  sale  is  complete  between  the  parties  and 
the  property  passes  as  soon  as  the  thing  and  the  price 
are  agreed  upon,  although  delivery  is  not  made  nor  the 
price  paid. 

In  Gobseck,  Derville  the  attorney,  who  appears  to  little 
advantage,  tells  the  story  of  the  old  miser,  with  refer- 
ences to  the  law  that  a  woman  not  in  trade  cannot  make 
a  technical  bill  of  exchange,  and  that  fees  for  settlements 
and  compromises  are  not  according  to  the  fee  bill.  The 
story  turns  upon  the  law  of  sale  with  faculie  de  rachat 
or  right  of  re-purchase  (Article  1659  of  the  Code),  a 
tempting  arrangement  to  the  needy  Countess  de  Restaud. 
Derville  shows  how  she,  being  a  married  woman,  could 
not  thus  get  money  on  her  jewelry  without  her  husband's 
consent  (Article  217  of  the  Code);  how  he,  Derville, 
assisted  the  usurer  to  circumvent  the  husband ;  how  the 
Count  made  a  deed  of  all  his  property  to  Gobseck,  tak- 
ing a  counter  deed  as  security,  and  how  the  Countess, 
after  her  husband's  death,  hastily  destroyed  the  deed, 
thinking  it  was  a  will,  so  that  Gobseck  remained  the 
owner  of  the  estate,  though  he  afterwards  restored  it  to 
the  Count's  son. 

In  Le  Depute  d'Arcis  (The  Member  from  Arcis),  Bal- 
zac gives  the  law  as  to  recognition  of  natural  children 
by  Acte  authentique  under  Article  334,  that  is,  by  deed 
acknowledged  before  a  notary.  This,  of  course,  was  not 
equivalent  to  legitimation,  which  could  be  accomplished 
by  the  marriage  of  the  parents  under  Article  331;  but 
gave  the  children  so  recognized  their  certain  shares  of 
their  parents'  estates,  defined  by  Article  756  of  the  Code, 
viz.,  a  third  of  the  share  of  a  legitimate  child.  The  law 
of  interments  is  here  referred  to  and  also  in  Ferragus. 
In  the  latter  book,  it  is  said  that  interments  were  under 
the  charge  of  the  police  department,  and  that  a  hus- 
band has  no  right  to  the  custody  of  his  wife's  dead  body 


148  The  Law  and  Lawyers 

nor  a  father  to  his  child's.  In  Paris  there  were  seven 
classes  of  funerals  regulated  by  law  as  to  cost.  In  Un 
Menage  de  Gargon,  old  Claparon  was  given  a  third-class 
funeral,  considered  very  cheap,  but  even  that  was  too 
expensive  for  old  Goriot. 

In  Les  Pay  sans,  Balzac  repeats  the  proverb  Charbon- 
nier  est  maUre  chez  lui  (a  man's  house,  even  a  charcoal 
burner's,  is  his  castle),  apparently  an  inheritance  from 
the  Roman  law  (Gaius  in  Dig.  II,  4,  18),  while  in  Une 
Tenebreiise  Affaire,  Malin  harangued  the  crowd,  ''des 
droits  du  foyer,  de  V habeas  corpus  et  du  domicile  anglais.'' 

In  many  of  his  stories  Balzac  illustrates  incidentally 
numerous  titles  of  the  law.  In  Catherine  de  Medicis, 
he  illustrates  the  sumptuary  laws  of  the  period,  the 
methods  of  judicial  torture  and  execution,  and  even  notes 
how  modern  municipal  regulations  have  abolished  the 
medieval  gargoyles.  In  Gambara,  the  old  musician's 
panharmonicon  was  sold  in  execution  on  the  public 
square  in  accordance  with  Article  617  of  the  Code  of 
Procedure.  In  La  Vendetta,  he  shows  the  law  of  the 
marriage  of  minors,  under  which  men  under  twenty-five 
years,  and  women  under  twenty-one  years,  cannot  con- 
tract marriage  without  their  parents'  consent.  After 
that  age,  if  consent  is  withheld,  an  Acte  respectueux  or 
"respectful  summons"  under  certain  formalities  (Articles 
148  and  152),  is  held  to  supply  the  place  of  consent,  this 
being  a  legal  and  formal  way  of  saying,  "We  intend  to 
do  it  whether  you  like  it  or  not."  In  this  way  under 
Notary  Roguin's  advice  Ginevra  Piombo  and  Luigi 
Porta,  whose  families  were  separated  by  the  vendetta, 
were  finally  married.  In  Un  Homme  d' Affaires  (A  Man 
of  Business),  and  La  Maison  Nucingen  (The  Firm  of 
Nucingen),  we  are  given  the  law  of  confusion  of  debts 
under  Article  1300  of  the  Code;  in  Les  Employes,  the 
law  of  gambling  contracts  under  Article   1965   of   the 


Of  Honore  de  Balzac  149 

Code,  and  the  purchasing  of  a  bankrupt's  debts,  the 
allowance  of  which  rests  with  the  committee  of  liquida- 
tion, as  was  also  arranged  by  Diard  in  Les  Maranas;  in 
Melmoth  Reconcilie,  he  notes  that  "P"  is  the  usual  abbre- 
viation of  "Protested"  on  bills  of  exchange;  and  even  in 
La  Grande  Breteche,  that  masterly  tale  worthy  of  Poe, 
where  the  story  is  related  three  times  from  three  several 
viewpoints,  the  notary's  narrative  is  drawn  to  life.  M. 
Regnault  in  his  description  of  La  Grande  Breteche  refers 
to  the  law  forbidding,  under  heavy  penalties,  a  trespass 
upon  enclosed  property,  and  says  a  hedge  is  the  same  as 
a  wall.  Speaking  of  the  furniture,  he  says  there  was  not 
enough  to  fill  ten  lines  in  an  inventory;  he  explains  the 
will  of  Madame  de  Merret,  and  the  law  forbidding  a 
notary  to  accept  a  bequest  under  the  will  he  has  written ; 
indeed,  he  talks  throughout  as  though  he  were  dictating 
a  legal  document. 

Le  Colonel  Chabert  is  the  pathetic  story  of  a  hero  of 
the  Napoleonic  Wars,  who  was  severely  wounded  at  the 
battle  of  Eylau  in  1807,  and  left  senseless  on  the  field. 
Supposed  to  be  killed,  his  body  was  stripped  and  buried 
with  the  dead.  Having  revived  and  extricated  himself 
he  found  himself  in  a  hospital,  a  physical  and  mental 
wreck,  and  when,  having  suffered  a  total  change  in 
appearance,  he  recollected  his  name  and  rank,  he  found 
no  one  to  believe  him.  He  was  alive,  yet  officially  dead, 
and  in  something  of  the  predicament  described  by  Kipling 
in  The  Strange  Ride  of  Morrowby  Jukes,  or  that  of  Mrs. 
Cunnius,  in  Cunnius  v.  Reading  School  District,  206  Pa. 
469,  or  Miss  Mary  B.  Devlin,  in  Devlin  v.  Commonwealth, 
101  Pa.  273.  Nine  years  afterwards  he  succeeded  in 
reaching  Paris,  and  found  that  his  wife  had  married 
Count  Ferraud,  by  whom  she  had  two  children.  This 
was  bad  enough,  but,  even  worse  than  that,  he  found  that 
his  will  had   been  proved  and  his  estate  settled   and 


150  The  Law  and  Lawyers 

divided,  his  wife  receiving  most  of  it.  Apparently  this 
was  in  accordance  with  Article  120,  et  seq.,  of  the  Code, 
providing  for  the  administration  of  the  effects  of  an 
absentee,  who  is  entitled  to  receive  his  property  back 
again  in  its  then  condition,  and  one-fifth  of  the  income, 
if  he  reappears  within  fifteen  years.  Now,  if  a  man 
wants  to  have  his  estate  properly  settled,  it  is  absolutely 
necessary  for  him  to  die.  It  is  not  enough  for  him  to 
disappear,  no  matter  for  how  long,  if  he  neglects  this 
simple  preliminary.  When  he  comes  back  unexpectedly, 
and  makes  himself  generally  disagreeable,  his  return  to 
the  scene  of  his  former  activities  will  disarrange  the 
most  careful  administration,  and  even  if  his  supposed 
death  was  mourned,  his  reappearance  will  be  even  more 
sincerely  lamented.  This  at  least  was  Colonel  Chabert's 
experience,  and  though  not  a  lawyer  he  speedily  con- 
cluded that  there  was  a  jurisdictional  defect;  and  not 
being  of  the  Enoch  Arden  temperament,  he  resolved  to 
claim  his  money  and  his  wife,  minus  the  two  superflu- 
ous children.  Receiving  no  reply  from  his  wife  to  his 
letters,  he  resolved  to  apply  to  her  lawyer,  Derville,  and 
the  story  opens  with  his  entry  into  Derville's  office, 
Balzac's  description  of  which  is  hardly  attractive.  The 
office  was  a  large  room,  furnished  with  the  traditional 
stove  to  be  seen  in  all  these  dens.  The  stovepipe 
crossed  the  room  diagonally  to  the  chimney  of  a  bricked- 
up  fireplace,  and  on  the  marble  chimney-piece  were 
chunks  of  bread,  triangles  of  Brie  cheese,  pork  cutlets, 
glasses,  bottles  and  the  head  clerk's  cup  of  chocolate. 
The  smell  of  these  dainties  blended  so  completely  with 
that  of  the  overheated  stove,  and  the  odor  peculiar  to  old 
papers,  that  the  trail  of  a  fox  would  not  have  been  per- 
ceptible. The  only  decorations  consisted  of  huge  yellow 
posters,  seizures  of  real  estate,  auction  sales  in  partition, 
and  all  the  glory  of  a  lawyer's  office.     An  enormous  stack 


Of  Honor e  de  Balzac  151 

of  pigeonholes  adorned  the  wall  from  top  to  bottom, 
crammed  with  papers  with  an  infinite  number  of  tickets 
hanging  from  them  at  the  ends  of  red  tape,  which  give  a 
peculiar  physiognomy  to  law  papers.  The  lower  rows 
were  filled  with  cardboard  boxes  yellow  with  age,  on 
which  might  be  read  the  names  of  the  more  important 
clients,  whose  cases  were  juicily  stewing  at  the  time. 
The  dirty  window  panes  admitted  but  little  daylight. 
"Were  it  not",  says  Balzac,  "for  the  mouldy  sacristies 
where  prayers  are  weighed  out  and  paid  for  like  groceries, 
and  for  the  old  clothes  shops  with  their  fluttering  rags, 
an  attorney's  ofifice  would  be  of  all  social  marts  the  most 
loathsome."  The  colonel,  with  his  singular  appearance 
and  costume,  was  received  with  ridicule  by  the  ofifice 
clerks,  who  were  engaged  in  drafting  an  appeal  from  the 
head  clerk's  dictation,  a  greenhorn  among  them  copying, 
as  part  of  the  legal  form,  the  head  clerk's  instructions 
to  dot  his  "i's."  Derville  is  out,  but  an  appointment 
was  made  for  one  o'clock  in  the  morning,  as  this  notable 
lawyer  is  apparently  able  to  work  all  night.  After  hear- 
ing the  story,  Derville,  notwithstanding  that  he  was 
attorney  for  the  Countess  Ferraud,  agreed  to  represent 
the  colonel,  and  advanced  him  money  for  living  expenses. 
Upon  receiving  afiEidavits  from  Germany  which  con- 
vinced Derville  of  Chabert's  identity,  the  lawyer  ex- 
plained to  his  client  the  legal  complication  resulting 
from  the  wife's  second  marriage.  The  point  was  not 
covered  by  the  Code,  and  could  only  be  decided  by  the 
judges  "according  to  conscience,"  who  might  not  think 
the  colonel  in  a  very  pretty  moral  position  at  his  age  to 
reclaim  a  wife  who  no  longer  cared  for  him.  (But  see 
Article  139  of  the  Code.)  Derville,  therefore,  advised  a 
compromise  for  an  annuity  of  24,000  francs,  for,  as  he 
justly  said,  with  so  much  a  year  you  can  find  other 
women  who  would  suit  you  better  and  make  you  happier. 


152  The  Law  and  Lawyers 

So  Derville  interviewed  the  countess,  his  own  client,  as 
though  she  were  a  stranger  and  an  adversary,  and,  strange 
to  say,  assumed  to  advise  her,  yet  it  seemed  to  be  regarded 
as  entirely  regular.  The  compromise  fell  through,  the 
countess  fell  back  on  Delbecq,  an  attorney  of  her  own, 
and  completely  triumphed  over  the  old  man,  who  spent 
the  rest  of  his  life  in  an  asylum. 

I  have  referred  particularly  to  this  story  in  order  to 
show  the  standard  of  professional  ethics  followed  by 
Derville.  In  What  Love  Costs  an  Old  Man,  the  Due  de 
Grandlieu  employed  Derville  to  ascertain  the  source  of 
the  wealth  of  Lucien  de  Rubempre,  who  was  the  suitor 
of  the  duke's  daughter.  Derville  visited  Eve  Sechard, 
Lucien's  sister,  and  deliberately  misrepresented  himself 
as  the  attorney  for  a  supposed  natural  brother,  who 
would  be  entitled  to  certain  rights  in  old  Sechard 's  estate, 
and  by  her  answers  was  assured  of  the  falsity  of  Lucien's 
statement  that  his  sister  had  supplied  him  with  the 
money. 

In  U Interdiction  (The  Commission  in  Lunacy),  Bal- 
zac portrays  Popinot,  his  ideal  judge.  The  Marquise 
d'Espard,  who  was  living  apart  from  her  husband,  and 
was  very  tired  of  him,  presented,  through  the  attorney, 
Desroches,  a  petition  to  the  Court  that  the  Marquis 
should  be  declared  incompetent  to  manage  his  business 
affairs.  The  case  was  assigned  to  Judge  Popinot,  and 
the  Marquise,  through  her  particular  friend,  Rastignac, 
procured  Dr.  Bianchon,  the  judge's  nephew,  to  invite 
him  to  dine  with  her.  The  judge,  by  way  of  answer, 
quoted  the  Code  of  Civil  Procedure,  Art.  378,  Sec.  8, 
forbidding  any  magistrate  to  eat  or  drink  in  the  house  of 
any  party  to  a  litigation  before  him.  The  judge  was  a 
widower  with  a  penchant  for  old  clothes  and  shabby  hats, 
his  hands  preferred  pockets  to  gloves,  and  he  had  a  dis- 
tinct aversion  to  shaving  more  than  twice  a  week.     With 


Of  Honor e  de  Balzac  153 

his  huge  feet,  flat  nose  and  enormous  ears,  his  appearance 
did  not  commend  itself  to  the  casual  observer,  while 
his  purity  of  mind  and  honesty  of  purpose  made  it 
impossible  for  him  to  enter  into  those  schemes  which 
political  pull  then  made  essential  for  professional  advance- 
ment. Familiar  with  criminals,  and  knowing  the  life  of 
all  the  poor  of  his  district,  he  occupied  the  time  not 
spent  in  his  judicial  duties  in  works  of  charity,  so  that 
his  merits  were  best  appreciated  by  those  who  were  least 
able  to  reward  them. 

The  petition  of  the  Marquise,  founded  upon  Article 
489  of  the  Code,  is  set  out  in  full  by  Balzac  and  occupies 
nearly  a  dozen  pages,  setting  forth  in  detail  the  alleged 
eccentricities  of  the  Marquis;  and  after  reading  it,  Judge 
Popinot  resolved  to  call  upon  the  parties  and  examine 
them  as  to  the  facts.  This  procedure  may  seem  queer  to 
us,  but  the  difference  in  practice  is  agreeable  to  the 
formula  already  given  for  French  law.  At  any  rate  Popi- 
not visits  the  Marquise,  taking  his  friends  along  with  him, 
and  cross-examines  her  so  skillfully  that  her  dishonest 
motives  are  laid  bare.  He  leaves  as  tea  is  served.  In  his 
subsequent  visit  to  the  Marquis,  he  ascertains  that  the 
real  cause  of  the  apparent  extravagance  of  the  Marquis 
was  his  endeavor  to  make  restitution  to  the  lawful  heirs  of 
property  confiscated  at  the  time  of  the  Revocation  of  the 
Edict  of  Nantes  by  Louis  XIV  and  given  to  the  ancestors 
of  the  Marquis.  Just  as  the  judge  had  written  his  report 
and  was  about  to  dismiss  the  petition,  the  President  of  the 
Court  dismissed  him  on  the  ground  that  he  had  taken  tea 
with  the  Marquise,  and  Caesar's  wife  must  be  above  sus- 
picion, so  Camusot,  a  dependable  judge,  who  figures  in 
other  novels,  is  appointed  in  his  stead. 

But  Balzac  is  too  vast.  It  is  impossible  to  discuss  the 
law  and  lawyers  of  The  Human  Comedy  in  an  hour.  It 
would  be  easier  to  exhaust  my  audience  than  my  subject. 


154  The  Law  and  Lawyers 

and  to  accomplish  the  latter  would  violate  the  rule  against 
perpetuities.  Any  Balzackian  will  see  that  this  is  only 
the  barest  sketch  of  the  subject,  but  as  Emerson  said  in 
his  journal,  "Sometimes  a  Scream  is  better  than  a  Thesis," 
and  as  Lord  Coke  remarked,  with  one  of  his  brilliant 
mixed  metaphors,  after  a  tedious  discussion  of  the  once 
profitable,  but  now  happily  forgotten  Statute  of  32  Hen. 
VIII  c.  5  (Co.  Litt.  290  a) :  "This  little  taste  shall  give  a 
light  to  the  diligent  reader." 


V 

The  Writings  of  Sir  Edward  Coke 


The  Writings  of  Sir  Edward  Coke ' 

Elizabeth,  Queen  of  England,  had  many  claims  to 
great  distinction.  Her  very  name  was  Tudor,  a  con- 
traction, it  seems,  of  Theodore,  "the  gift  of  God,"  an 
epithet  of  happy  omen  associated  with  the  mighty  rulers 
of  the  earth,  among  whom  may  be  mentioned  the  African 
king,  Theodore  of  Abyssinia.  This  monarch  is  described 
in  the  Encyclopedia  Britannica  as  a  "man  of  education 
and  intelligence,  superior  to  those  among  whom  he  lived, 
with  natural  talents  for  governing  and  gaining  the  esteem 
of  others.  He  had  a  noble  bearing,  and  a  frame  capable 
of  enduring  any  amount  of  fatigue,  and  he  was  the  best 
shot  and  the  best  horseman  in  Abyssinia.  He  was  gen- 
erous to  excess  and  free  from  cupidity  but  subject  to 
violent  bursts  of  anger."  ^ 

Elizabeth  also  possessed  many  of  these  royal  traits  of 
character,  although  Coke  said  her  name  was  not  really 
Tudor  but  rather  Owen  or  Meredith,  though  "God  would 
not  suffer  her  to  have  a  sir  name  because  by  his  grace  and 
goodness  she  should  deserve  for  her  imperial  vertues  to 
be  called  Elizabeth  the  great."  ^  "She  was,"  said  Coke, 
"the  phoenix  of  her  sex;^  she  was  Angliae  Amor;^  fami- 
liar with  French,  Italian  and  Spanish  and  learned  in 
Latin  and  Greek;  ^  and  "as  the  rose  is  the  queen  of  flowers 

^  Reprinted  from  the  Yale  Law  Journal,  May,  1909. 

'^Encyclopedia  Britannica,  Art.   Abyssinia. 

3  4  Inst.  239.  The  references  to  2,  3  and  4  Inst,  are  to  the  London 
Ed.  of  1809. 

*  8  Rep.  77a.  The  references  to  the  reports  are  to  Thomas  and 
Frazer's  edition. 

5  2  Inst.  578. 

» 4  Inst.  227. 


158  The  Writings 

.  .  .  she  was  the  Queen  of  Queens.  You  cannot  question 
what  rose  I  mean:  for  take  the  red  or  the  white  she  was 
not  only  by  royal  descent  and  inherent  birthright,  but  by 
roseal  beauty  also,  heir  to  both."  ^ 

Whether  or  not  Elizabeth  deserved  this  praise,  and  even 
if  she  had  no  right  to  bear  the  royal  name  of  Theodore, 
she  was  fortunate  enough  to  lend  her  own  to  the  most 
glorious  period  of  her  country's  history.  Never  before 
was  thought  more  effervescing  or  life  more  iridescent 
and  vivid.  There  was  a  volcanic  eruption  of  brilliant 
men;  Coke  was  born  in  1552,  Bacon  in  1561,  Shakespeare 
in  1564.  Why  it  was  that  these  men,  unequalled  res- 
pectively as  lawyer,  philosopher  and  poet,  should  have 
appeared  within  the  narrow  limits  of  a  dozen  years  is 
certainly  strange,  but  as  writers  always  say  of  what  they 
cannot  explain,  we  shall  not  stop  here  to  inquire. 

Among  these  and  other  men  who  graced  the  complex 
Elizabethan  Age,  Coke  was  by  no  means  the  least  im- 
portant. He  was  the  oracle  and  ornament  of  the  common 
law:  a  lawyer  of  prodigious  learning,  untiring  industry 
and  singular  acumen,  with  an  accurate  knowledge  of 
human  nature.  He  was  a  Judge  of  perfect  purity,  a 
patriotic  and  independent  statesman  and  a  man  of  up- 
right life;  and  to  bring  us  to  the  subject  of  this  paper,  his 
writings  have  had  more  influence  upon  the  law  than  those 
of  any  other  law  writer  —  certainly  in  England  —  who 
ever  lived.  And  yet  there  are  some  who,  while  admitting 
his  learning,  would  deny  every  other  claim  just  made  for 
him.  It  is  indeed  hard  to  estimate  correctly  even  after 
three  centuries,  those  mighty  men  who  then  occupied  the 
center  of  the  stage.    Every  one  who  reads  the  fascinating 

1  Co.  Litt.  Pref.  Coke  often  alluded  to  his  service  as  Elizabeth's 
Attorney  General.  3  Inst.  79,  112,  164,  191,  236;  4  Inst.  110,  257, 
341,  347. 


Of  Sir  Edward  Coke  159 

Elizabethan  story  becomes  insensibly  a  Baconian  or  a 
Cokian,  a  partisan  of  one  or  the  other  of  those  wonder- 
ful men.  They  were  indeed  antipathetic,  each  doubtless 
feeling  for  the  other  intellectual  compassion  rather  than 
sympathy. 

We  are  finding  out  in  the  twentieth  century  what  the 
English  lawyers  discovered  in  the  sixteenth,  that  the  old 
common  law,  with  its  unsurpassed  powers  of  adaptability 
and  expansion  contains  within  it  the  solution  of  present- 
day  problems,  and  in  our  renewed  study  upon  historical 
lines  we  cannot  have  a  better  motto  than  "Back  to  Coke." 
As  he  himself  said:  "Out  of  the  old  fields  must  come  the 
new  come."  ^  There  are  few  principles  of  the  common 
law  that  can  be  studied  without  an  examination  of  Coke's 
Institutes  and  Reports,  which  summed  up  the  legal  learn- 
ing of  his  time.  From  this  study  the  student  is  deterred 
by  the  too  common  abuse  of  Coke's  character  and  the 
general  criticism  of  his  writings  as  dry,  crabbed,  verbose 
and  pedantic.  Much  of  this  criticism  is  incorrect,  for 
his  severest  critics,  I  am  sure,  are  the  least  familiar  with 
his  writings;  much  of  it  is  unfair,  for  Coke,  like  every 
man,  was  necessarily  a  product  of  the  age  in  which  he 
lived.  His  faults  were  the  faults  of  his  time,  his  excel- 
lencies those  of  all  time.  He  was  diffuse;  he  loved  meta- 
phor, literary  quibbles  and  verbal  conceits;  so  did  Bacon, 
and  so  did  Shakespeare.  So  did  all  the  writers  of  his  day. 
They  were  creative,  not  critical.  But  Coke  as  a  law 
writer  was  as  far  superior  in  importance  and  merit  to  his 
predecessors,  at  least  if  we  except  Bracton,  as  the  Eliza- 
bethan writers  in  general  were  superior  to  those  whom 
they  succeeded,  and,  as  the  great  Elizabethans  fixed  the 
standard  of  our  English  tongue,  so  Coke  established  the 
common  law  on  its  firm  foundation.    A  modern  lawyer 

1  2  Inst.  22;  Pref.  1  Rep.  xxx. 


160  The  Writings 

who  heaps  his  abuse  on  Coke  and  his  writings  seems  as 
ungrateful  as  a  man  who  dimbs  a  high  wall  by  the  aid  of 
the  sturdy  shoulders  of  another  and  then  gives  his  friend 
a  parting  kick  in  the  face  as  he  makes  the  final  leap. 

The  two  writers  who  are  responsible  for  most  of  the 
unfair  criticism  of  Coke  as  a  man  and  a  lawyer  are  Lord 
Macaulay  and  Lord  Campbell,  the  former  exhibiting  all 
his  violent  prejudice  and  the  latter  his  inaccurate  super- 
ficiality. Just  criticism  requires  sympathy  with  its  sub- 
ject and  these  men  did  not  walk  with  Coke.  They  stood 
on  the  other  side  of  the  street  and  called  him  names. 
It  is  not  the  present  purpose  of  the  writer  to  defend 
Coke's  personality,  but  only  the  literary  characteristics 
of  his  writings,  and  in  this  mere  sketch,  I  shall,  after 
quoting  the  charges  of  Macaulay  and  Campbell,  endeavor 
to  prove  their  unfairness  and  then  to  show  by  quotations 
from  Coke  himself  that  his  literary  taste  and  abilities 
have  been  underrated,  and  that  his  writings  possess  a 
certain  characteristic  charm. 

Macaulay,  in  his  Essay  on  Lord  Bacon,  attacked  Coke 
with  the  same  "rancorous  insolence"  of  which  he  accuses 
Coke.  He  calls  Coke  a  "stupid  sergeant,^  pedant,  bigot 
and  brute,"  although  Macaulay  grudgingly  admits  that 
"he  had  qualities  which  bore  a  strong,  though  a  very  dis- 
agreeable, resemblance  to  some  of  the  highest  virtues 
which  a  public  man  can  possess."  ^ 

Again  Macaulay  says:  "Coke's  opposition  to  the 
Court,  we  fear,  was  the  effect,  not  of  good  principles,  but 
of  a  bad  temper,"^  and  in  recounting  Bacon's  downfall, 
Macaulay  says:    "Coke,  for  the  first  time  in  his  life, 

1  Macaulay's  Works  in  12  vols.  Longmans,  Green  &  Co.,  Vol.  viii., 
p.  516.  Coke  was  not  made  a  sergeant  until  he  went  on  the  Bench. 
1  Johnson's  Coke,  p.  215. 

2  Vol.  viii.,  p.  547. 

3  Vol.  viii.,  p.  562. 


Of  Sir  Edward  Coke  161 

behaved  like  a  gentleman."^  Lord  Campbell,  on  the 
first  page  of  his  Life  of  Coke^  praises  him  in  no  slight 
language  for  his  knowledge  of  the  law,  his  ability  and 
independence  as  a  Judge,^  and  his  great  services  to  his 
country  in  framing  the  Petition  of  Right,'^  but  through- 
out his  biography  severely  criticises  Coke's  personal 
characteristics.  These  criticisms  can  best  be  refuted  by 
a  calm  consideration  of  his  life  and  the  opinions  of  those 
more  capable  of  correct  judgment  than  these  brilliant  but 
prejudiced  men  who  wrote  two  centuries  after  their  vic- 
tim died.  But  what  is  more  important  for  us  just  now 
is  Campbell's  criticism  of  the  method  and  style  of  Coke's 
writings.  Collected  from  various  portions  of  the  biog- 
raphy, these  charges  are  about  as  follows:  "His  reason- 
ing," says  Campbell,  "is  narrow  minded";  he  had  an 
"utter  contempt  for  method  and  style  in  his  composi- 
tions" ;  ^  he  had  "no  genuine  taste  for  elegant  literature" ;  ^ 
"his  mind  was  wholly  unimbued  with  literature  or 
science" ;''  he  knew  "hardly  anything  beyond  the  weari- 
some and  crabbed  learning  of  his  own  craft,'' ^  although 
Campbell  elsewhere  says  of  Coke:  "He  is  uniformly 
perspicuous  and  gives  amusing  glimpses  of  history  and 

1  Vol.  viii.,  p.  583. 

"^  Lives  of  the  Chief  Justices,  Vol.  i.     Murray's  Ed. 

3  Campbell  emphasizes  this  frequently;  see  pp.  257,  268,  277,  279, 
282,  286,  293,  346. 

4  Vol.  i.,  pp.  330,  339. 

^  Vol.  i.,  p.  239.  On  p.  345  he  calls  Coke  a  "deep  but  narrow- 
minded  lawyer,"  but  says  on  p.  289  his  Reports  "were  executed  with 
great  accuracy  and  ability,  though  tinctured  with  quaintness  and 
pedantry." 

^  Vol.  i.,  239.  Campbell,  however,  gives  several  good  examples 
of  Coke's  style;  pp.  341,  342. 

'  Vol.  i.,  p.  337. 

*  Vol.  i.,  p.  345.  It  is  interesting  to  observe  how  Campbell  speaks 
of  his  own  profession. 


162  The  Writings 

manners."  ^  He  endeavors  to  prove  Coke's  distaste  for 
literature  by  saying  that  at  school  "he  was  more  remark- 
able for  memory  than  imagination  and  he  had  as  much 
delight  in  cramming  the  rules  of  prosody  in  doggrel  verse 
as  in  perusing  the  finest  passages  of  Virgil."  ^  If  Camp- 
bell had  any  authority  for  this,  he  fails  to  give  it,  and  it  is 
probable  that  he  displayed  his  own  imagination  rather 
than  his  memory  when  he  made  this  silly  statement. 
But  he  makes  another  statement  quite  as  foolish.^ 
"Coke,"  he  says,  "values  the  father  of  English  poetry 
only  in  so  far  as  the  Canon's  Yeoman  s  Tale  illustrates 
the  Stat.  5  H.  IV,  c.  4  against  alchemy  or  the  craft  of 
the  multiplication  of  metals;  —  and  he  classes  the  wor- 
shipper of  the  Muses  with  the  most  worthless  and  foolish 
of  mankind:  —  The  fatal  end  of  these  five  is  beggary,  — 
the  alchemist,  the  monopolist,  the  concealer,  the  informer 
and  the  poetaster. 

Saepe  pater  dixit,  studium  quid  inutile  tentas  ? 
Maeonides  nullas  ipse  reliquil  opes."  * 

This  is  indeed  a  curious  innuendo.  It  would  not  prove 
that  a  lawyer  does  not  care  for  literature,  to  show  that  he 
does  not  quote  poetry  in  his  law  books.  Coke  was  not 
obliged  to  quote  Chaucer  at  all,  but  if  he  did,  he  would 
naturally  cite  him  to  illustrate  some  point  of  law.  But 
in  fact  Coke  quoted  Chaucer  no  less  than  four  times. 
In  speaking  of  good  pleading.  Coke  refers  to  Chaucer's 
sergeant-at-law : 

"Thereto  he  could  indite  and  make  a  thing, 
There  was  no  wight  could  pinch  at  his  writing."  * 

^  Hardcastle'sLJ/e,  Vol.  ii.,  p.  26. 

2  Vol.  i.,  p.  241. 

3  Vol.  i.,  p.  337. 
^  3  Inst.  74. 

6  2  Inst.  123. 


Of  Sir  Edward  Coke  163 

and  he  applies  the  same  verses  to  Littleton  in  the  preface 
to  Co.  Liu.  from  which  it  appears  that  Campbell  never 
read  or  had  forgotten  the  very  interesting  and  well- 
written  preface  to  Coke's  most  famous  work.^  Coke,  in 
explaining  the  meaning  of  Vavasor,  cites  Chaucer  "our 
English  poet"  in  the  Franklyns  Prologue,'^  and  he  illus- 
trates the  meaning  of  Lusheburghs,  a  kind  of  base  coin, 
by  a  quotation  from  the  Prologue  to  the  Monk's  Tale.^ 
Lord  Campbell  would  have  been  fairer  also  had  he  noted 
that  Coke  quoted  from  Chaucer  "in  lihro  meo,'"^  show- 
ing that  he  thought  enough  of  Chaucer  to  own  a  copy. 
Prejudiced  statements  like  this  have  widespreading  influ- 
ence. Emerson  in  hxsEssay  on  Culture  evidently  adopted 
Campbell's  remark  about  Coke  and  Chaucer. 

Nor  does  Coke  "class  the  worshipper  of  the  Muses  with 
the  most  worthless  and  foolish  of  mankind."  He  classes 
the  "poetaster"  with  the  alchemist  et  al.,  but  "poetaster" 
is  not  equivalent  to  "poet,"  for  it  means  a  "trifling"  or 
"foolish"  poet.  It  would  be  as  just  to  say  that  Ben  Jon- 
son,  in  ridiculing  such  a  one  in  his  play  ''The  Poetaster,'' 
meant  to  decry  his  own  profession.  Coke,  as  I  shall 
endeavor  to  show,  had  a  great  respect  for  poets  and  was 
fond  of  poetry,  and  the  Latin  verses  which  he  quotes 
from  Ovid, ^simply  express  the  obvious  truth  that  poetry 
is  not  a  money-making  business,  for  even  Homer  left  no 
fortune. 

It  seems  almost  certain  indeed  that  Coke,  in  this  pas- 
age  about  the  "poetaster,"  alluded  to  Ben  Jonson's 
play  of  that  name,  for  in  the  A  polo  getical  Dialogue  which 

^  Hardcastle's  Lz/e,  i.,  62,  71.  As  a  student,  Campbell  does  not 
seem  to  have  read  Co.  Litt.  very  industriously. 

2  2  Inst.  667. 

3  3  Inst.  1. 

« 3  Inst.  74. 

^  Tristia,  Lib.  4,  Eleg.  10. 


164  The  Writings 

follows  it,  the  dramatist  defends  himself  from  the  charge 
that  he  had  intended  to  ridicule  the  profession  of  the  law, 
by  saying: 

"Indeed,  I  brought  in  Ovid, 
Chid  by  his  angry  father  for  neglecting 
The  study  of  their  laws  for  poetry; 
And  I  am  warranted  by  his  own  words: 
'Saepe  pater  dixit,  studium  quid  inutile  tentas  ? 
Maeonides  nullas  ipse  reliquit  opes.' 
But  how  this  should  relate  unto  our  laws. 
Or  the  just  ministers,  with  least  abuse, 
I  reverence  both  too  much  to  understand!" 

Campbell's  citation,  therefore,  proves  the  exact  opposite 
of  his  proposition,  for  it  shows  that  Coke  had  read  at 
least  this  much  of  Jonson. 

Coke  was  a  lover  of  learning,  a  Cambridge  man  and 
very  loyal  to  his  university.  His  allusions  to  Cambridge 
are  always  devoted  and  affectionate.  Thus  he  says: 
"That  famous  University  of  Cambridge,  alma  mater  mea} 
In  remembrance  of  my  love  and  duty  almae  matri  Acade- 
miae  Cantabrigiae."  ^  "The  liberal  arts  and  sciences,"  he 
says  in  his  chapter  on  the  University  Courts,  "are  the 
lumina  reipublicae,"  and  the  Act  of  13  Eliz.,  confirming 
the  universities  in  their  rights,  he  called,  "this  blessed 
Act."  3 

But  to  return  to  Campbell:  "The  Globe  and  other 
theatres  were  rising  into  repute,  but  he  never  would  ap- 
pear at  any  of  them ;  ...  it  is  supposed  that  in  the  whole 
course  of  his  life  he  never  saw  a  play  acted,  or  read  a  play, 
or  was  in  company  with  a  player."*     This  must  have 

1  Co.  Litt.  Pref. 

2  Co.  Litt.  109  b. 

3  4  Inst.  227.  Holt,  C.  J.,  in  I  Ld.  Ray.  I.,  468,  speaks  of  Coke's 
loyalty  to  Cambridge  as  shown  in  Bonham's  Case,  8  Rep.  107  a. 

^  Campbell's  Lives,  Vol.  i.,  p.  243. 


Of  Sir  Edward  Coke  165 

been  "supposed"  by  Campbell  himself,  for  no  authority 
is  given  for  the  statement,  and,  as  shown  above,  Coke, 
it  is  almost  certain,  had  read  Jonson's  The  Poetaster.  Even 
if  it  were  true  that  Coke  did  not  attend  the  theatre,  the 
fact  would  not  prove  that  he  did  not  care  for  literature 
or  poetry.  Very  likely  the  leader  of  the  bar,  an  indefati- 
gable worker  in  his  profession,  could  not  spare  the  time. 
But  Campbell  makes  a  more  serious  charge .  ' ' He  shunned 
the  society  of  Shakespeare  and  Ben  Jonson  as  of  vagrants 
who  ought  to  be  set  in  the  stocks  or  whipped  from  tithing 
to  tithing.  The  Bankside  company  having  one  summer 
opened  a  theatre  at  Norwich  while  he  was  recorder  of  that 
city,  in  his  next  charge  to  the  grand  jury  he  thus  launched 
out  against  them:  'I  will  request  that  you  carefully  put 
in  execution  the  statute  against  vagrants;  since  the 
making  whereof  I  have  found  fewer  thieves  and  the  gaol 
less  pestered  than  before.  The  abuse  of  stage  players, 
wherewith  I  find  the  country  much  troubled,  may  easily 
be  reformed,  they  having  no  commission  to  play  in  any 
place  without  leave,  and  therefore,  if  by  your  willingness 
they  be  not  entertained,  you  may  soon  be  rid  of  them.'" 
And  Campbell  adds  a  note:  "It  is  supposed  to  be  out  of 
revenge  for  this  charge  that  Shakespeare  parodied  his 
(Coke's)  invective  against  Sir  Walter  Raleigh  in  the 
challenge  of  Sir  Andrew  Aguecheek."  ^ 

There  is  no  foundation  whatever  for  the  statement  that 
Coke  regarded  Shakespeare  and  Jonson  as  vagrants,  and 
shunned  their'  society,  nor  can  any  such  inference  be 
fairly  drawn  from  Coke's  Norwich  charge.  This  was  de- 
livered on  August  4,  1606,  when  Coke  was  Chief  Justice  of 
the  Common  Pleas  and  not  during  his  recordership,  which 
office  he  had  held  nearly  twenty  years  before.  The  charge 
was   piratically   published   by  one  Pricket,  and  in  the 

1  Campbell's  Lives,  Vol.  i.,  pp.  337-338. 


166  The  Writings 

preface  to  7  Rep.,  Coke  explains  that  it  was  printed  with- 
out authority  with  many  errors  and  omissions.  But  even 
if  he  was  correctly  reported,  it  must  be  remembered 
that  theatres  and  actors  were  strictly  regulated  by  the 
Statutes  of  14  Eliz.  c.  5,  and  39  Eliz.  c.  4,  by  which 
"Common  Players  in  Enterludes  &  Minstrels  with  Fencers 
Bearwardes"  and  other  undesirables  were  classed  as 
"Rogues,  Vagabonds  and  Sturdie  Beggers"  and  punished 
accordingly,  unless  belonging  to  a  "Baron  or  other  hon- 
orable Personage  or  having  licenses  of  two  Justices  of  the 
Peace."  ^ 

It  was  perfectly  proper  that  the  grand  jury  should 
have  their  attention  called  to  these  statutes  and  their 
violation  by  companies  of  irresponsible  strolling  players. 
Jonson  himself  was  accused  of  having  ridiculed  actors 
in  The  Poetaster,  and  Coke  might  have  defended  himself 
from  the  charge  of  persecution  in  Jonson's  own  words: 


"Now  for  the  players,  it  is  true  I  tax'd  them 
And  yet  but  some;   and  those  so  sparingly, 
As  all  the  rest  might  have  sat  still  unquestioned, 
Had  they  but  the  wit  or  conscience 
To  think  well  of  themselves."  ^ 


More  than  this,  we  have  Jonson's  own  words  to  show  the 
great  respect  he  entertained  for  Coke.  In  his  Underwoods, 
Jonson  addressed  Coke  when  the  latter  was  Lord  Chief 
Justice,  in  part  as  follows: 

"He  that  should  search  all  glories  of  the  gown, 
And  steps  of  all  raised  servants  of  the  crown, 
He  could  not  find  than  thee,  of  all  that  store, 
Whom  fortune  aided  less,  or  virtue  more, 

^The  statute  is  alluded  to  in  The  Poetaster,  Act  I,  Sc.  1. 
^Apologetical  Dialogue,  Poetaster. 


Of  Sir  Edward  Coke  167 

Such,  Coke,  were  thy  beginnings  when  thy  good 
In  others'  evil  best  was  understood: 
When,  being  the  stranger's  help,  the  poor  man's  aid, 
Thy  just  defences  made  th'  oppressor  afraid. 

And  now  such  is  thy  stand,  while  thou  dost  deal 
Deserved  justice  to  the  public  weal. 
Like  Solon's  self,  —  "  ' 

The  Norwich  charge  was  delivered  August  4,  1606, 
Coke  having  been  made  Chief  Justice  of  the  Common 
Pleas  on  June  20th  of  the  same  year.  As  Gifford ,  Jonson's 
editor,  points  out,  Coke  is  addressed  as  Lord  Chief  Jus- 
tice of  England,  and  as  Coke  was  not  promoted,  or,  as  he 
considered  it,  demoted  to  the  King's  Bench  until  October 
25,  1613,  at  which  time  he  assumed  the  title  of  Lord  Chief 
Justice,  the  above  lines  must  have  been  written  on  or  after 
that  date,  and  therefore  subsequent  to  the  charge  at  Nor- 
wich. It  is  incredible  that  Jonson  would  have  addressed 
such  praise  to  Lord  Coke  if  in  fact  Coke  was  the  persecutor 
of  play-actors  or  had  abused  them  in  his  charge. 

The  reference  to  Coke's  conduct  at  the  Raleigh  trial 
and  Shakespeare's  alleged  resentment  is  without  founda- 
tion. Sir  Walter  Raleigh's  trial  took  place  November  17, 
1603,^  at  which  Coke,  who  as  Attorney  General  was  the 
prosecutor,  addressed  Raleigh  in  the  celebrated  invective : 
"All  that  Cobham  did  was  by  thy  inspiration,  thou  viper, 
for  I  thou  thee,  thou  traitor."  The  editor  of  the  State 
Trials  adds  in  a  note  that  Shakespeare  in  all  probability 
alludes  to  this  when  he  makes  Sir  Toby  Belch,  in  Twelfth 
Night,  Act.  Ill,  Scene  2, say, in  giving  directions  to  Ague- 
cheek  for  his  challenge  to  Viola:  "If  thou  thou'st  him 
some  thrice  it  may  not  be  amiss."  This  mistake  has 
been  repeated   by  every  detractor  of   Coke    (including 

1  Underwoods,  LXV. 

2  2  St.  Tr.  1. 


168  The  Writings 

Campbell)  ever  since,  none  of  them  stopping  long  enough 
to  note  that  Twelfth  Night  was  produced  long  before  Ral- 
eigh's trial.  It  was  almost  certainly  acted  in  the  Temple 
before  February,  1601-2.^  It  is  of  course  possible  to 
argue  that  the  words  were  a  later  addition  after  the  trial 
and  before  the  folio  was  printed  in  1623,  but  this  is  very 
unlikely.  Shakespeare  died,  it  will  be  remembered,  in 
1616.  Dr.  Furness  in  his  Variorum  edition  observes,  on 
this  passage,  that  he  has  small  faith  in  those  contemporary 
allusions.  Coke,  therefore,  more  probably  took  the 
phrase  from  Shakespeare,  or  indeed  it  was  probably  a 
common  expression  of  disdain .^ 

Campbell  is  still  more  unfortunate  in  his  disparagement 
of  Coke's  scientific  attainments.  "His  progress  in  science 
we  may  judge  of  by  his  dogmatic  assertion  that  the  metals 
are  six,  and  no  more:  —  gold,  silver,  copper,  tin,  lead  and 
iron;  and  they  all  proceed  originally  from  sulphur  and 
quicksilver  as  from  their  father  and  mother."  ^  Camp- 
bell, however,  does  not  quote  Coke  accurately  or  fairly. 
Coke  said:  "There  are  six  kinds  of  metals,  viz. :  aurum, 
argentum,  aes,  sive  cuprum  {quia  inventum  fuit  in  Cypro) 
stannum,  plumbum  et  ferrum.  That  is  to  say,  gold, 
silver,  copper,  tynne,  lead,  and  iron;  for  chalyhs,  steel,  is 
but  the  harder  part  of  iron,  and  orichalcum,  aurichalcum, 
viz. :  lattyn  or  brasse,  is  compounded  of  copper  and  other 
things.  .  .  .  How  these  several  kinds  of  metalls  as  is 
supposed,  proceed  originally  from  sulphur  and  quicksilver 

1  Singer's  Shakespeare,  preliminary  remarks. 

^Cf.  Epistolae  Obscurorum  Vivorum  I.  14,  " Dixit  ei  multa  superba 
dicta  et  tibisavit  eutn."  II.  58,  "Tunc  rebellavit  mihi  et  statim 
tibisavit  mihi."  In  the  edition  by  Francis  Griffin  Stokes,  a  refer- 
ence is  noted  to  the  passage  in  Twelfth  Night  and  to  the  French 
verb,  tutoyer. 

^  3  Inst.  ch.  XX.  Campbell  i.,  338.  Plowden  says  the  same.  Case 
of  Mines,  Plowd.  339. 


Of  Sir  Edward  Coke  169 

as  from  their  father  and  mother,  and  other  things  con- 
cerning the  same,  you  may  at  your  leisure  read  in 
Georg  Agricola,  lib.  10,  ca.  1."  &c. 

Coke  made  no  professions  to  scientific  attainments  and 
merely  adopted  on  this  question,  and  as  to  the  quintes- 
sence, in  the  same  chapter,  the  views  current  in  his  day 
under  the  authority  of  Paracelsus  and  others.  He  evi- 
dently accepted  the  common  opinion  with  some  distrust, 
and  at  any  rate  may  certainly  be  excused  for  not  know- 
ing any  more  than  Sir  Thomas  Browne  and  Sir  Francis 
Bacon,  the  former  of  whom  was  willing  to  encourage  the 
experiments  of  alchemists  even  if  he  distrusted  them.^ 

Georg  Agricola  was  the  foremost  mineralogist  of  his 
day,  and  Coke  was  quite  right  in  referring  to  him  as  an 
authority.  Bacon  speaks  of  Agricola  with  respect  as 
''scriptor  recens,  diligenter  admodum  in  mineralibus."^ 
Sir  Thomas  Browne  owned  a  copy  of  Agricola,  and  in 
writing  to  his  son  Edward,  in  Vienna,  refers  him  to  that 
author;^  and  Dr.  Edward  Browne,  in  his  letter  to  his 
father,  Feb.  3,  1669,  encloses  several  inquiries  from  the 
secretary  of  the  Royal  Society,  such  as:  "Whether  in 
all  the  mines  of  gold,  silver,  copper,  iron  and  lead  of 
Hungary,  there  be  found  everywhere  quicksilver  and 
sulphur?"    showing  that  the  question  was  a  live  one. 

Bacon  himself,  although  he  believed  alchemy  to  be  an 
imposture,'*  seems  to  have  believed  in  the  transmutation 
ot  metals,^  and  he  thought  it  would  be  easier  to  make  silver 
than  gold  because  both  quicksilver  and  lead  are  weightier 

1  1  Browne's  Works,  Ed.  Simon  Wilkin,  xcvi. 

^  De  Augmentis,  Lib.  iii.;  1  Spedding  572.     Plowden  339. 

3 1  Browne  183,  188. 

*  In  Praise  oj  Knowledge,  1  Montagu's  5aco«,  253. 

^Advancement  of  Learning,  Book  II;  2  Montagu  147;  4  Spedding 
367;  Natural  History,  Century  iv. ;  4  Montagu  159;  2  Spedding 
448;  Physiological  Remains,  7  Montagu  209,  212;  3  Spedding  809. 


170  The  Writings 

than  silver,^  and  he  expressly  says  that  "mercury  and 
sulphur  are  the  principal  materials  of  metals."  ^  This 
all  shows  that  Coke  relied  upon  recognized  authority  in 
matters  of  science,  as  he  generally  did  in  everything  else, 
and  surely  is  not  to  be  blamed  if  he  accepted  the  views  of 
the  day,  especially  when  a  professed  philosopher  and 
scientist  like  Bacon  expressed  pretty  much  the  same 
theories.  It  is  not  a  little  curious,  by  the  way,  that  the 
latest  theory  of  modern  scientists  indicates  the  ultimate 
unity  of  all  matter  and  the  possibility  of  its  change  from 
one  form  to  another. 

Finally,  Campbell  charges  Coke  with  "a  contempt  for 
all  philosophical  speculation." 

"Having  received  a  copy  of  Bacon's  Novum  Organum 
from  the  author,  he  wrote  on  the  fly  leaf:  'Edw.  C,  ex 
dono  auctoris,'  and  he  vented  his  spleen  in  the  following 
sarcastic  lines  which  he  subjoined: 

"'AUCTORI  CONSILIUM. 
"  ' Instaurare  paras  veterum  documenta  sophorum; 
Instaura  leges,  justitamque  prius. ' 

"In  the  title  page,  which  bore  the  device  of  a  ship  pas- 
sing under  a  press  of  sail  through  the  Pillars  of  Hercules, 
he  marked  his  contempt  of  all  philosophical  speculations 
by  adding  a  distich  in  English: 

"  'It  deserves  not  to  be  read  in  schools, 

But  to  be  freighted  in  the  Ship  of  Fools.'  "^ 

This  book  was  Bacon's  Instauratio  Magna,  printed  in 
1620,  and  its  title  page  is  reproduced  by  Spedding.^ 

^  Physiological  Remains,  7  Montagu  193;   3  Spedding  803. 

2  Natural  History,  Century  iv.;  4  Montagu  175;  2  Spedding 
459.  See  also  Novum  Organum,,  2nd  Book  of  Aphorisms,  L;  4  Sped- 
ding 242. 

^  Campbell's  Lives  i.,  307.  Campbell  takes  this  from  Bacon's 
collected  works.     See  7  Montagu  380. 

*  1  Spedding,  119. 


Of  Sir  Edward  Coke  171 

After  all  the  enmity  which  Bacon  had  for  years  openly 
exhibited  to  Coke,  it  strikes  one  as  remarkable  that  he 
should  have  presented  Coke  with  a  copy  of  his  great  book. 
Whatever  might  have  been  his  motive,  he  could  hardly 
expect  the  donee  to  look  on  his  production  with  an  indul- 
gent eye.  Coke  was  born,  like  John  the  Baptist  and  all 
the  rest  of  us,  of  a  woman;  he  was  only  human,  and  the 
"sarcastic"  but  truthful  advice  may  well  have  been 
written  by  Coke  six  months  afterwards,  when  Bacon  fell 
from  his  high  estate.  The  ship  sailing  triumphantly 
through  the  Pillars  of  Hercules  was  of  course  intended 
by  Bacon  to  typify  a  comparison  between  the  recent 
discovery  of  the  new  material  world  and  his  own  antici- 
pated discovery  of  a  new  intellectual  world, ^  and  Coke's 
verses,  comparing  Bacon's  ship  to  the  well-known  Ship 
of  Fools,2  were  doubtless  provoked  by  a  claim  which 
he,  and  others  since  his  time,  thought  too  boastful.  But 
to  say  that  Coke  had  a  "contempt  for  all  philosophical 
speculation"  is  an  incorrect  inference. 

In  taking  leave  of  Campbell  it  is  only  fair  to  add  that 
he  bestows  high  praise  upon  the  technical  merits  and 
great  value  of  Coke's  writings.  Thus  he  says:  "Coke's 
magnum  opus  ishis Commentary  onLittleton,  which  in  itself 
may  be  said  to  contain  the  whole  common  law  of  England 
as  it  then  existed.  Notwithstanding  its  want  of  method 
and  its  quaintness,  the  author  writes  from  such  a  full 
mind,  with  such  mastery  over  his  subject  and  with  such 
unbroken  spirit,  that  every  law  student  who  has  made, 
or  is  ever  likely  to  make,  any  proficiency  must  peruse 
him  with  delight,"^  and  the  other  Institutes  are  "won- 
derful monuments  of  his  learning  and  industry."  * 

^  Abbott's  Francis  Bacon,  377. 

^  By  Sebastian  Brand.  Translated  from  Latin  and  German 
into  English,  1508. 

^  Campbell  i.,  340.     See  Hardcastle's  Life,  ii.,  261. 
*  Campbell,  i.,  335. 


172  The  Writings 

Of  Coke's  Reports  Campbell  says:  "He  presents  a 
great  many  questions  to  be  'resolved'  which  were  quite 
irrelevant,  or  never  arose  at  all  in  the  case,  and  these  he 
disposes  of  according  to  his  own  fancy.  Therefore  he 
is  often  rather  a  codifier  or  legislator  than  a  reporter, 
and  this  mode  of  settling  or  reforming  the  law  would  not 
now  be  endured,  even  if  another  lawyer  of  his  learning 
and  authority  should  arise.  Yet  all  that  he  recorded 
as  having  been  adjudged  was  received  with  reverence."  ^ 
The  criticism  is  not  wholly  deserved,  at  least  is  too 
strongly  stated,  and  Coke  has  made  his  own  defense. 
He  explains  the  length  of  some  of  his  reports  by  the 
number  of  questions  argued  at  the  Bar  in  cases  involv- 
ing large  sums,^  and  says  that  he  purposely  endeavored 
to  avoid  the  omission  of  authorities  cited  or  arguments 
made,^  while  in  Mountjoy's  case*  he  says:  "Many 
other  matters  were  moved  by  the  counsel  on  both  sides 
at  the  Bar  in  this  case,  which  I  purposely  omit  because 
the  court  gave  no  resolution  of  them."  A  fair  and 
careful  reading  of  his  Reports  will  lead  to  the  conclusion 
that  Coke  conscientiously  tried  to  pay  the  debt  which 
he  owed  to  his  profession,^  and  further,  that  it  was  the 
frequent  habit  of  the  judges  of  the  time  to  decide,  as 
though  part  of  the  case,  questions  which  were  only  col- 
laterally involved.  How  well  upon  the  whole  Coke  dis- 
charged his  debt,  Campbell  eloquently  admits:  "Belong- 
ing to  an  age  of  gigantic  intellect  and  gigantic  attain- 
ments, he  was  admired  by  his  contemporaries  and  time 
has  in  no  degree  impaired  his  fame.  For  a  profound 
knowledge  of  the  common  law  of  England  he  stands 

1  Campbell,  i.,  340. 

2  10  Rep.  Pref.  xxi. 

^  9  Rep.  Pref.  xxxix. ;   7  Rep.  Pref.  ix. 
4  5  Rep.  6  b. 
«  9  Rep.  Pref.  xl. 


Of  Sir  Edward  Coke  173 

unrivalled.  As  a  judge  he  was  not  only  above  suspicion 
of  corruption  but  at  every  risk  he  displayed  an  independ- 
ence and  dignity  of  deportment  which  would  have 
deserved  the  highest  credit  (even)  if  he  had  held  his  office 
during  good  behavior,  and  could  have  defied  the  dis- 
pleasure of  the  government.  To  his  exertions  as  a 
parliamentary  leader  we  are  in  no  small  degree  indebted 
for  the  free  constitution  under  which  it  is  our  happiness 
to  live.  .  .  .  There  were  other  public-spirited  men 
who  were  ready  to  stand  up  in  defence  of  freedom,  but 
Coke  alone,  from  his  energy  of  character  and  from  his 
constitutional  learning,  was  able  to  carry  the  Petition  of 
Right,  and  upon  his  model  were  formed  Pym  and  the 
patriots  who  vindicated  that  noble  law  on  the  meeting 
of  the  Long  Parliament."  ^ 

I  now  pass  to  the  evidence,  collected  from  the  writings 
of  Coke,  which  shows  the  extent  of  his  acquaintance  with 
literature,  and  his  own  literary  taste.  Coke  was  perfectly 
familiar  with  classical  literature,  both  prose  and  poetry, 
and  his  marvellous  memory  suggested  on  almost  every 
page  some  parallel  passage  from  the  best  Latin  writers. 
The  Greek  authors  he  quotes  less  frequently  and  nearly 
always  from  Latin  translations.  Of  course,  in  his  day, 
Latin  was  the  language  of  all  learning,  and  every  edilr 
cated  man  understood  it.  To  a  lawyer  it  was  indispen- 
sable, as  was  also  the  law  French.  Coke  knew  both 
languages  as  his  mother  tongue,  and  as  a  matter  of  course 
quoted  sentences  and  pages  from  the  Year  Books,  the 
Parliamentary  Rolls  or  old  records  or  authors  like  Brac- 
ton,  Britton  and  others,  without  thinking  it  necessary  to 
translate.  Bacon,  it  is  well  known,  committed  to  Latin, 
in  preference  to  English,  those  of  his  writings  which  he 
considered  of  permanent  value.     Perhaps  Coke's  fondness 

1  Campbell  i.,  339. 


174  The  Writings 

for  the  Latin  and  his  discursive  habit  in  writing  has 
given  rise  to  the  charge  that  he  was  a  pedant.  But 
pedantry  is  a  useless  display  of  learning,  or  perhaps  a 
display  of  useless  learning — at  any  rate,  the  term  involves 
the  double  idea  of  display  or  affectation  and  uselessness. 
Holofernes  was  a  type  of  pedant.  King  James  I  was 
probably  another.  Coke,  however,  was  no  pedant  any 
more  than  Ben  Jonson  or  Jeremy  Taylor;  as  he  said  in 
one  place,  he  took  all  in  his  way  and  omitted  Httle  or 
nothing,  "for  there  is  no  knowledge  (seemeth  it  at  the 
first  of  never  so  little  moment)  but  it  will  stand  the 
diligent  student  in  stead  at  one  time  or  other."  ^ 

To  illustrate  the  breadth  of  Coke's  acquaintance  with 
the  classics  and  Latin  authors  I  have  noted  in  his  works: 
from  Juvenal,  three  citations;  from  Tacitus,  eleven; 
Virgil,  twenty-eight;  Cicero,  twenty-four;  Ovid,  five; 
Cato,  three;  Aristotle,  thirteen;  Sallust,  three;  Seneca, 
nine;  Horace,  eight;  Pliny,  three;  writers  on  civil  law, 
thirteen;  Lyndwood  and  writers  on  canon  law,  twenty; 
St.  Augustine,  five;  and  he  has  quoted  less  frequently 
from  Homer,  Terence,  Euripides,  Martial,  Strabo,  Sue- 
tonius, Caesar  and  a  number  of  post-classical  writers 
including  Thomas  Aquinas,  Jerome  and  St.  Ambrose. 
As  Coke  remarked:  "Authoritates  philosophorum,  medi- 
corum  et  poetarum  sunt  in  causis  allegandae  et  tenendae,''  ^ 
and  he  notes  with  pleasure:  "This  is  the  fourth  time 
that  our  author  (Littleton)  hath  cited  verses."  ^  "Verses," 
he  says,  "were  invented  for  the  helpe  of  memorie  and  it 
standeth  well  with  gravitie  of  our  lawyer  to  cite  them."  ■* 
Did  space  permit,  it  might  perhaps  be  interesting,  at 
least  to  some,  to  note  the  very  many  instances  in  which 

1 4  Inst.  Proeme.     Cf.  Co.  Litt.  9  a;  4  Inst.  98. 

2  Co.  Litt.,  264  a. 

3  Co.  Litt.,  236  b;  263  b;  308  b;  395  a. 
*  Co.  Litt.  237  a;  Co.  Litt.  264  a. 


Of  Sir  Edward  Coke  175 

he  makes  an  apposite  poetical  quotation.  Following 
are  a  few  only.  In  the  case  of  Swans,  he  quotes  the 
verses  about  the  death  song: 

"Dulcia  defecta  modulatur  carmina  lingua 
Cantator  cygnus  funeris  ipse  sui."  ^ 

After  quoting  Virgil,  he  says:  "But  fearing  that  one 
of  Virgil's  verses  should  be  applied  to  us: 

"  'Sedjam  age,  carpe  viam,  susceptum  perfice  munus.'  "  * 

When  he  speaks  of  a  right  in  nubibus,  as  the  phrase 
was,  he  quotes  the  description  of  Juno  from  JEneid,  B. 
IV: 

"  Inseguiturque  solo,  et  caput  inter  nubila  condit.'  "  ^ 

He  mentions  younger  sons,  and  the  lines  of  Horace 
occur  to  him: 

"  Haud  facile  emergunt  quorum  virtutihus  obstat, 
Res  angusta  domi."  * 

In  Twyne's  case,  he  gives  us  the  well-known  verses: 

"Quaeritur,  ut  crescunt  tot  magna  volumina  legis  ? 
In  promptu  causa  est,  crescit  in  orbe  dolus."  * 

The  right  of  every  accused  person  to  be  heard  in  his 
defense  recalls  the  "damnable  and  damned"  proceed- 
ings of  Rhadamanthus  in  Virgil : 

"Gnosius  hie  Rhadamanthus  habet  durissima  regna 
Castigatque,  auditque  dolos,  subigitque  fateri."  ^ 

1  7  Rep.  17  a. 

2  ^neid  v.     2  Inst.  574. 

3  Co.  Litt.  342  b. 
*  Co.  Litt.  140  b. 
5  3  Rep.  82  a. 

« 2  Inst.  55. 


176  The  Writings 

And  every  one  knows  the  ancient  verses  he  has  made 
familiar,  as  to  the  distribution  of  time: 

''Sex  horas  somno,  totidem  des  legibus  acquis, 
Quatuor  orabis,  des  epulisque  duas. 
Quod  super  est  ultro  sacris  largire  camaenis."  ' 


Again : 


"For  true  it  is  that  neither  fraud  nor  might, 
Can  make  a  title  where  there  wanteth  right."  ^ 


In  his  chapter  on  Witchcraft,^  Coke  himself  dips  into 
poetry.     He  translates: 

"Carminibus  Circe  socios  mutavit  Ulyssis  —  " 

"By  charmes  in  rhyme  (O  cruel  fates!) 
Circe  transform'd  Ulysses'  mates." 

And  again: 

"Carmina  de  coelo  possunt  detrudere  lunem  —  " 

"By  rhyme  they  can  pull  down  full  soon, 
From  lofty  sky  the  wandring  moon."  * 

There  are  many  entertaining  literary  chapters  in  Coke. 
The  entire  preface  to  Co.  Litt.  is  well  worth  reading. 
Then  there  is  the  chapter  Of  Diet,  3  Inst.  200,  in  which 
Coke  speaks  of  the  statutes  regulating  the  eating  of 
flesh,  and  taking  these  as  his  text,  warns  his  readers 
against  "the  dainty  and  disorderly  excesse  of  meat  and 
drink"  as  opposed  to  orderly  hospitality,  illustrating  his 
topic  with  quotations  from  the  Bible,  Cicero  and  Horace, 
and  the  customs  of  the  Danes,  Normans,  English  and 
the  Ancient  Britons.   Likewise  in  his  chapter  Of  Buildings, 

1  Co.  Litt.  64  b. 

2  8  Rep,  153  b. 

3  3  Inst.  43. 

^  See  a  longer  poetical  translation,  3  Inst.  156. 


Of  Sir  Edward  Coke  177 

3  Inst.  201,  Coke  laments  the  elaborate  and  costly 
style  of  building  then  fashionable,  and  quotes  Sir  Thomas 
More's  translation  of  Euripides: 

"Aedificare  domos  multas,  et  pascere  multos 
Est  ad  pauperiem  semita  laxa  nimis." 

"To  build  many  houses,  and  many  to  feed 
To  poverty  that  way  doth  readily  lead." 

He  gives  us  much  curious  and  entertaining  learning 
about  the  building  of  tombs  and  actions  for  their  deface- 
ment, church  pews  and  funeral  expenses,  the  seven 
wonders  of  the  world  in  six  Latin  verses,  the  uses  of 
funeral  monuments,  the  "burial  of  the  dead,"  the  con- 
secration of  churches,  the  subterranean  buildings  of  the 
ancient  Germans  related  by  Tacitus.  Then  he  talks  of 
lighthouses : 

"Lumina  noctivagae  tollit  pharus  aemula  lunae." 

"In  light-house  top  is  rear'd  the  light 
As  high  as  the  moon  that  walks  by  night,"  ^ 

of  restrictions  against  building,  and  the  derivation  of 
certain  words. 

Chapter  73  of  4  Inst,  treats  of  the  Forest  law.  "And 
seeing,"  says  Coke,  "we  are  to  treat  of  matters  of  game 
and  hunting,  let  us  (to  the  end  we  may  proceed  the 
more  cheerfully)  recreate  ourselves  with  the  excellent 
description  of  Didoes  doe  of  the  forest  wounded  with  a 
deadly  arrow  sticken  in  her,  and  not  impertinent  to  our 
purpose." 

"  Uritur  infoelix  Dido,  totaque  vagatur 
Urbe  furens,  fife." 

And  then  he  goes  on  to  tell  of  forests,  and  the  forest 
courts,  "the  false  and  furious  officers,"  vert  and  venison, 

^  See  parallel  passages  in  4  Inst.  148. 


178  The  Writings 

the  survey  of  dogs,  the  court  of  swanimote.  and  verderors, 
hue  and  cry,  dog-draw,  stable-stand,  back-bear  and 
bloody-hand,  purlieus,  scotale,  the  duties  of  wood- 
wards, and  much  more.  Coke  delights  in  explaining 
the  technical  terms  of  venary.  What  is  a  pretty  pleasing 
pricket,  you  may  here  see,  and  what  is  venison,  and  why  a 
hare  and  a  boar  are  venison  and  a  bear  is  not;  and  all 
with  copious  references  to  Bracton,  the  Year  Books,  old 
charters,  Virgil,  Lyndwood,  Aristotle,  Martial,  the 
Bible,  Suetonius  and  many  notable  records.  "Recrea- 
tions," says  Coke,  "should  not  be  used  as  professions 
and  trades,  but  to  be  used  as  medicines  to  make  men 
more  able  and  fit  for  higher  and  greater  affairs  .  .  . 
and  thus  have  we  wandered  in  the  wilderness  of  the 
laws  of  the  forest  .  .  .  wherein  (as  the  studious  reader 
may  well  perceive)  we  have  respected  matter  more  than 
method." 

Coke's  writings  abound  with  quaint,  axiomatic,  idio- 
matic, and  pithy  expressions.  The  following  may  serve 
as  examples  (the  reader  may  look  for  others,  and,  seeking, 
will  find  them) : 

"The  life  of  a  man  is  much  favoured  in  law,  but  the 
life  of  the  law  itself  ought  to  be  more  favoured."  ^ 

"The  general  custom  of  the  realm  is  the  common 
law."  2 

"Questions  (are)  like  spirits  which  may  be  raised  with 
much  ease  but  vanquished  with  much  difficulty."^ 

"Perpetuities  were  born  under  some  unfortunate  con- 
stellation." ^ 

"All  the  sons  of  Adam  must  die."  ^ 

1  9  Rep.  68  b. 

2  9  Rep.  75  b. 

3 10  Rep.  29  a. 
«  10  Rep.  42  b. 
6 10  Rep.  50  b. 


Of  Sir  Edward  Coke  179 

"Idleness  is  the  mother  of  all  vice  and  wickedness."  ^ 

Of  death-bed  wills  he  says:  "Few  men  pinched  with 
the  messengers  of  death  have  a  disposing  memory."  ^ 

Of  rebutter  Coke  says:  "A  title  of  the  law,  in  my 
opinion,  excellently  curious  and  curiously  excellent";' 
so  he  speaks  of  "the  great  weigh tinesse  and  weighty 
greatness"  of  Magna  Charta} 

Of  a  hog  stye  as  a  nuisance  he  says:  "One  ought  not 
to  have  so  delicate  a  nose  that  he  cannot  bear  the  smell 
of  a  hog."  ^ 

Fraud  Coke  compares  to  "birds  closely  hatched  in 
hollow  trees,"  or  "iw  arbore  cava  et  opaca."  ^ 

"The  common  law  is  an  old,  true  and  faithful  servant 
to  this  commonwealth." '' 

"I  am  not  afraid  of  gnats  that  can  prick  and  cannot 
hurt,  nor  of  drones  that  keep  a-buzzing  and  would  but 
cannot  sting."  ^ 

Of  certain  books  he  said:  "They  are  like  to  apothe- 
caries' boxes  whose  titles  promise  remedies,  but  the  boxes 
themselves  contain  poison."  ^ 

Of  ignorant  physicians,  "Who  more  hurt  the  body  of 
man  than  the  disease  itself,  one  of  which  said  of  one  of 
their  patients,  fugiens  morbum  incidit  in  medicum."  ^° 

"To  proceed  farther  were  but  to  gild  gold  or  to  add  a 
little  drop  to  the  great  ocean."  ^^ 

1 10  Rep.  Pref.  vii.,  11  Rep.  53  b.     Cf.  11  Rep.  162. 
^  10  Rep.  Pref.  xiv.;   Co.  Litt.  Ill  b. 
3 10  Rep.  Pref.  xvi. 
*  Co.  Litt.  81  a. 

6  9  Rep.  58  a. 

M  Inst.  63;  5  Rep.  60  b. 

7  6  Rep.  42  b. 

8  7  Rep.  Pref.  vii. 

^  7  Rep.  Pref.  vi.     Coke  hated   medicine,  and  boasted  that  he 
never  took  it. 
">  8  Rep.  117  a. 
"  9  Rep.  Pref.  xxiv. 


180  The  Writings 

A  certain  statute,  he  says,  "is  cousin  German  to 
another,"  ^ 

"It  is  the  worst  oppression  that  is  done  by  colour  of 
justice."  2 

"There  is  no  greater  injustice  than  when  under  colour 
of  justice  injury  is  done."  ^ 

"Sometime  when  the  public  good  is  pretended,  a  pri- 
vate benefit  is  intended."  ^ 

"This  case  is  calculated  for  the  meridian  of  the  Court 
of  Wards."  5 

Of  the  ex-officio  oath:  "No  man  shall  be  examined 
upon  secret  thoughts  of  his  heart  or  of  his  secret  opinion."  ^ 
"Thought  is  free."  7 

"The  law  and  custom  of  England  is  the  inheritance  of 
the  subject,  which  he  cannot  be  deprived  of  without  his 
assent  in  Parliament."  * 

"Trade  and  traffic  is  the  life  of  every  island."  ^ 

"The  Judges  cannot  create  offences  nor  do  as  Hannibal 
did  to  make  his  way  over  the  Alps  when  he  could  find 
none."  i" 

"Ambition  rideth  without  reins."  ^^ 

Of  Ranulph,  Bishop  of  Durham:  "He  lived  without 
love  and  died  without  pity,  saving  of  those  who  thought 
it  pity  he  lived  so  long."  ^^ 

1 10  Rep.  60  b. 

2  2  Inst.  48. 

3  2  Inst.  112;  2  Inst.  388. 
4 10  Rep.  142  b. 

5  11  Rep.  Pref.  iv. 
« 12  Rep.  26. 
^  13  Rep.  10. 

8  12  Rep.  29.     Cj.  Co.  Litt.  95  b. 

9  12  Rep.  79. 
i«  12  Rep.  122. 

"  2  Inst.  Proeme  4. 
12  2  Inst.  15. 


Of  Sir  Edward  Coke  181 

"Every  one  thirsteth  after  gaine."  ^ 

"No  man  can  carry  the  words  of  a  positive  law  by 
Parliament  in  his  head."  ^ 

Of  attendance  at  several  courts  on  the  same  day:  "A 
man  can  be  but  in  one  place  at  one  time."  ^ 

"Elections  are  free."  * 

"They  which  gladly  heare  false  reports  and  newes  will 
be  also  as  ready  to  publish  them."  ^ 

"Once  forsworne,  and  ever  forlorne."  ^ 

"Preventing  justice  is  better  than  punishing  justice."  ^ 

"The  devil  deviseth  delays."^ 

"Odious  in  law  is  waste  and  destruction."  ^ 

"The  debts  of  cruelty  are  never  unpaid,  respicefinem.^'  ^^ 

"Truth  is  the  mother  of  justice."  ^^ 

"A  law  worthy  to  be  written  in  letters  of  gold,  but 
more  worthy  to  be  put  in  due  execution."  ^^ 

"It  is  good  chance  to  obtaine,  but  great  wisdome  to 
keep."  13 

"They  that  buy  deare,  must  sell  deare."  ^'^ 

"Those  two  great  pronouns,  meum  et  tuum."  ^^ 

1 3  Inst.  196. 

2  2  Inst.  88. 

^  2  Inst.  9.     A  remark  having  some  present-day  application. 

*  2  Inst.  169. 

^  2  Inst.  225,  on  Stat.  West.  1,  ch.  xxxiv.,  as  to  devisors  of  tales. 

« 2  Inst.  238. 

'  2  Inst.  248,  299. 

8  2  Inst.  260. 

» 2  Inst.  329. 
i»4Inst.  12;  2  Inst.  508. 
"  2  Inst.  524. 

12  Co.  Litt.  234a;  2  Inst.  526,  625;   Co.  Litt.  3  b. 
"  2  Inst.  527. 
"  2  Inst.  566. 
1^  3  Inst.  Proeme. 


182  The  Writings 

Of    flattery:     "It   getteth    away   much    and    giveth 

smoke."  ^ 

Of  bribery:   "They  that  buy  will  sell."  ^ 
"Though  the  bribe  be  small,  yet  the  fault  is  great."  ^ 
"Where  shall  a  man  be  safe,  if  it  be  not  in  his  house?"  * 
"The  house  of  every  man  is  his  castle  and  fortress."  * 
"The  King  can  never  be  poor  when  his  subjects  are 

rich."  6 

"Three  costly  things  do  much  impoverish  the  subjects 

of  England,  viz.:  costly  apparell:  costly  diet,  and  costly 

building."  7 

"The  sins  of  the  soul  are  turned  to  fire."  ^ 
"Parliaments,  palaces  of  princes,  and  pulpits  should  be 

free  from  adulation  and  flattery,"  ^ 

"Good  bills  in  Parliament  seldom  die."  ^^ 

"No  man  ought  to  be  condemned  without  answer."  " 

"The  golden  and  streight  metwand  of  the  law,  and  not 

the  uncertain  and  crooked  cord  of  discretion."  ^^ 

"Peace  is  the  mother  of  plenty,  and  plenty  the  nurse 

of  suits."  ^^ 

"Execution  is  the  life  of  the  law."  ^'* 

1  3  Inst.  207. 

2  3  Inst.  148. 

3  3  Inst.  147. 
*  3  Inst.  162. 

6  5  Rep.  91b;   11  Rep.  82  b. 

6  3  Inst.  194. 

7  3  Inst.  199. 

8  3  Inst.  200. 

9  3  Inst.  209. 

"4  Inst.  32;   4  Inst.  83. 

"4  Inst.  41;   Co.  Litt.  227  b. 

12  4  Inst.  38. 

"  4  Inst.  76. 

"  4  Inst.  130;  5  Rep.  88  b;  2  Inst.  729. 


Of  Sir  Edward  Coke  183 

In  the  chapter  on  Ambassadors,  speaking  of  gold  and 
silver  money,  he  calls  them  "mute  but  moving  ambas- 
sadors." ^ 

"Hope  is  the  dream  of  a  waking  man."  ^ 

"Earth  is  the  suburbs  of  heaven."  ^ 

"The  agreement  of  the  parties  cannot  make  that  good 
which  the  law  maketh  void."  ^ 

"Three  things  be  favoured  in  law:  life,  liberty  and 
dower."  ^ 

"The  law  is  the  rule  but  it  is  mute.  The  Judges  are  the 
speaking  law."  ^ 

"Justice  is  the  daughter  of  the  law,  for  the  law  bringeth 
her  forth."  ^ 

"Certainty  is  the  mother  of  quietness  and  repose."  ^ 

"When  the  courts  of  justice  be  open,  it  is  time  of 
peace."  ^ 

"A  right  cannot  die:  trodden  down  it  may  be,  but 
never  trodden  out."  ^^ 

"Everie  man  is  presumed  to  make  the  best  of  his  owne 
case."  ^^ 

"Warranties  are  favoured  in  law,  but  estoppels  are 
odious."  ^^ 

Extortion  is  no  other  than  robbery  but  is  more  odious. ' '  ^^ 

1 4  Inst.  157. 

^  4  Inst.  203.     The  same  thought  is  ascribed  to  Aristotle,   Plato 
and  Quintilian. 
3  Co.  Litt.  4  a. 
^  Co.  Litt.  51  b. 
6  Co.  Litt.  124  b. 
«  Co.  Litt.  130  a. 
'  Co.  Litt.  142  a. 

8  Co.  Litt.  212  a. 

9  Co.  Litt.  249  b. 
i»  Co.  Litt.  279  a. 
"  Co.  Litt.  303  b. 

12  Co.  Litt.  365  b. 

13  10  Rep.  101  b.     Cf.  Plowden  68. 


184  The  Writings 

"Robbery  is  apparent  and  hath  the  face  of  a  crime,  but 
extortion  puts  on  the  visure  of  vertue  for  the  expedition 
of  justice."  ^ 

"Copyholders  though  very  meanly  descended,  yet 
come  of  an  ancient  house."  ^ 

"A  mischief  is  rather  to  be  suffered  than  an  incon- 
venience." ^ 

"Nothing  that  is  contrary  to  reason  is  consonant  to 
law."  ' 

"These  informers  were  best  trusted  where  they  were 
least  known."  ^ 

"Corporations  have  no  souls."  ^ 

"Reason  is  the  life  of  the  law."  '' 

"The  realm  of  England  is  an  Empire."  ^ 

"There  be  three  kinds  of  unhappy  men:  He  that  hath 
knowledge  and  teacheth  not ;  He  that  teacheth  and  liveth 
not  thereafter;  He  that  knoweth  not  and  doth  not  en- 
quire to  understand."  ^ 

"The  King's  treasure  is  the  sinews  of  warre."^" 

"Three  marks  of  a  libeller:  Increase  of  lewdness,  de- 
crease of  money,  and  shipwreck  of  conscience."  ^^ 

"It  is  less  than  a  dream  of  a  shadow  or  a  shadow  of  a 
dream."  ^^ 

1  Co.  Litt.  368  b.     Cf.  Plowden  68. 

2  Comp.  Copy.  §  xxxii. 

3  Of  Bail,  ch.  xiii. 

4  Co.  Litt.  56  b. 

6  4  Inst.  172. 

«  10  Rep.  32  b. 

7  Co.  Litt.  319  b. 

8  4  Inst.  342. 

9  Co.  Litt.  232. 

^^  Co.  Litt.  90  b.     Probably  an  ancient  saying,  apparently  from 
Plutarch. 

"  5  Rep.  126  a. 
12  7  Rep,  27  a. 


Of  Sir  Edward  Coke  185 

"As  was  excellently  shadowed  by  the  Trojan  horse  in 
Virgil's  Second  book  of  his  JS,neid."  ^ 

"The  real  worth  of  anything,  is  just  as  much  as  it  will 
bring."  ^ 

And  Coke's  loyalty  prompted  this  praise  of  England's 
navy:  "The  king's  navy  excels  all  others  in  the  world: 
for  beauty  they  are  so  many  royal  palaces;  for  strength, 
so  many  moving  castles,  and  for  safety  they  are  the  most 
defensive  walls  of  the  realm.  Among  the  ships  of  other 
nations  they  are  like  lions  amongst  silly  beasts,  or  falcons 
amongst  fearful  fowle."  ^ 

"Every  member  of  Parliament,"  he  says,  "should  have 
three  properties  of  the  elephant;  first,  that  he  hath  no 
gall;  secondly,  that  he  is  inflexible  and  cannot  bow; 
thirdly,  that  he  of  a  most  ripe  and  perfect  memory."  ^ 

The  "dull  and  crabbed"  Coke  was  not,  however, 
altogether  devoid  of  a  sense  of  humor,  albeit  of  a  some- 
what dry  vintage.  His  works  are  not  exactly  jest 
books,  nevertheless  there  is  an  occasional  word  in  lighter 
vein.  It  takes  two,  remember,  to  make  a  quarrel  or  a 
joke,  him  who  speaks  and  him  who  hears,  —  the  vibra- 
tion of  a  note  and  the  tuning  fork  in  sympathy.  He 
that  hath  ears  to  hear,  let  him  hear. 

Coke  doubtless  noted  with  pleasure  the  names 
"Catcher  and  Skinner,"  as  the  sheriffs  in  Westby's  case,  ^ 
and  in  another  case  he  observed  that  "the  land  lying 
near  the  ditch  is  drowned  ad  dampnum."  ^ 

Of  conflicting  sumptuary  laws  against  excess  of 
apparel,   he  says:     "Some  of  them   fighting  with   and 

1 7  Rep.  18  b. 

2  3  Inst.  105. 

34  Inst.  50;  cf.  4  Inst.  147. 

44  Inst.  3. 

6  3  Rep.  67  a. 

«  9  Rep.  54  b. 


186  The  Writings 

cuffing  one  another."  ^  He  says:  "The  temporal  Judge 
commits  the  party  convict  to  the  gaoler,  but  the  spiritual 
Judge  commits  the  person  excommunicate  to  the  devil,"  ^ 
but  notes  that  excommunication  had  no  effect  upon  the 
wheat  crop  of  the  excommunicate.  ^ 

He  derives  placitum  or  plea,  "a  placendo,  quia  bene 
placitare  super  omnia  placet,  and  not,  as  some  have  said, 
so  called  quia  non  placet.''  ^ 

Of  precedency  among  women:  "The  contention  about 
precedency  between  persons  of  that  sex  is  ever  fiery, 
furious  and  sometimes  fatall."  ^ 

In  speaking  of  the  posterity  of  Littleton,  Coke  said: 
"It  quartereth  many  fair  coats  and  enjoyeth  fruitful 
and  opulent  inheritances  thereby,"  and  he  added  in  the 
margin:    "The  best  kind  of  quartering  of  arms."  ^ 

Of  the  white  staff,  the  Lord  Treasurer's  badge  of 
offtce:  "When  treasure  failed,  the  white  staff  served  to 
rest  him  upon  it,  or  to  drive  away  importunate  suitors."  ^ 

An  infant  being  permitted  to  levy  a  fine  before  com- 
missioners who  knew  she  was  within  age,  the  commis- 
sioners were  every  one  of  them,  fined,  but  the  fine  stands.  * 

He  said  as  to  ecclesiastical  patronage  which  he  exer- 
cised himself,  says  Campbell,  with  perfect  purity:  "Liv- 
ings ought  to  pass  by  Livery  and  Seisin  and  not  by  Bar- 
gain and  Sale."  ^ 

Lord  Bacon  tells  us  that  Coke  was  wont  to  say,  when 
a  great  man  came  to  dinner  to  him,  and  gave  him  no  notice 

1  3  Inst.  199. 

2 12  Rep.  79. 

3  3  Inst.  42. 

^  Co.  Litt.  17  a;   Co.  Litt.  303  a. 

54  Inst.  363. 

6  Co.  Litt.  Pref. 

'  4  Inst.  104. 

8  12  Rep.  123. 

3  1  Campbell,  343. 


Of  Sir  Edward  Coke  187 

of  his  coming:  "Well,  since  you  sent  me  no  word  of  your 
coming,  you  shall  dine  with  me;  but  if  I  had  known  of 
your  coming,  I  would  have  dined  with  you."  ^ 

Partington's  case  he  mentions  as,  "the  honorable 
funeral  of  fond  and  new  found  perpetuities,  a  monstrous 
brood  carved  out  of  mere  invention  and  never  known  to 
the  ancient  sages  of  the  law  ...  at  whose  solemn 
funeral  I  was  present  and  accompanied  the  dead  to  the 
grave  of  oblivion  but  mourned  not."  ^ 

"An  oratour  having  spoken  much  in  commendation 
of  Hercules,  it  was  demanded  of  one  that  stood  by, 
Quis  vituperavit  ?    Ad  quod  non  fuit  responsum."  ^ 

Occasionally  Coke  gives  us  some  amusing  mixed  meta- 
phors.—  Of  certain  statutes:  "They  were  so  like  laby- 
rinths with  such  intricate  windings  and  turnings,  as  little 
or  no  fruit  proceeded  of  them."  * 

"To  wind  up  the  thred  of  this  discourse  with  three 
acts  of  Parliament."  ^ 

"We  have  broken  the  ice,  and  out  of  our  owne  indus- 
try and  observation  framed  this  high  and  honorable 
building  of  the  jurisdiction  of  courts,"  ^ 

"This  little  taste  shall  give  a  light  to  the  diligent 
reader."  "^ 

"But  I  perceive  myself  rashly  running  into  an  inex- 
tricable labyrinth ;  I  will  therefore  sail  no  longer  in  these 
unknown  coasts,  but  will  hasten  homewards."  ^  But 
mixing  metaphors  was  common  enough  in  those  days. 

^Apothegms  No.  133;  7  Spedding,  143. 

2 10  Rep.  Pref.  x. 

3  4  Inst.  12. 

^  3  Inst.  204. 

» 3  Inst.  224. 

^  4  Inst.  Epilogue. 

'  Co.  Litt.  290  a. 

8  Co.  Litt.  110  a;  9  Rep.  Pref.  xxv. 


188  The  Writings 

Shakespeare  "took  up  arms  against  a  sea  of  troubles." 
The  language  was  plastic.  A  man  who  had  two  images 
in  his  mind  at  once  did  not  hesitate  to  utter  them 
together. 

Coke  was  fond  of  etymology  and  liked  to  give  or  guess 
at  the  derivation  of  words.  Of  course  he  was  wrong  as 
often  as  correct,  and  as  Lord  Campbell  said:  "Some  of 
his  etymologies  are  as  good  for  a  laugh  as  Joe  Miller  or 
'Punch.'  "  ^  There  was  no  science  of  philology  in  his 
day,  so  he  innocently  supposed  that  the  suffix  ment 
was  the  root  of  mens,  the  mind.^  Testament  he  derives 
from  testis  and  mens,  just  as  Parliament  was  supposed 
to  be  "parler  la  ment,"  "speak  the  mind,"  &c.^  But 
this  definition  of  testament  is  given  in  Justinian's  Insti- 
tutes,^ and  Coke  may  be  pardoned  for  assuming  that 
the  compiler  of  the  Institutes  understood  the  Latin 
language.  Pages  might  be  filled  with  funny  specimens 
such  as  "Gavelkind,"  from  "gave  all  kinde,"  ^  terra 
a  terendo,  quia  vomere  teritur,^  and  "cadaver"  from  the 
first  syllables  of  the  words  caro  data  vermihusP 

Coke  gives  us  some  entertaining  stories  from  Hollings- 
hed  and  others:  "King  Edward  IV  called  before  him 
the  wealthiest  of  his  subjects  and  demanded  of  each  of 
them  a  certain  sum  of  money.  Amongst  the  rest  there 
was  a  widow  of  a  very  good  estate,  of  whom  the  king 
merely  asked  what  she  would  willingly  give  him  for  the 
maintenance  of  his  wars.     'By  my  faith,'  quoth  she,  'for 

^  Hardcastle's  Life,  ii,  261. 

2  Co.  Litt.  322  b;  Co.  Litt.  112  a;   10  Rep.  57  a. 

3  Co.  Litt.  110  a.;   Rep.  Pref.  xxv. 
^  B.  ii,  Tit.  X. 

^  Co.  Litt.  140  a.     The  common   etymology  when   Coke   wrote; 
Butler's  note  224. 
«  4  Rep.  37  b. 
'  3  Inst.  203. 


Of  Sir  Edward  Coke  189 

your  lovely  countenance'  sake,  you  shall  have  twenty 
pounds' ;  which  was  more  than  the  king  expected.  The 
king  thanked  her  and  vouchsafed  to  kiss  her,  upon  which 
she  presently  swore  he  should  have  twenty  pounds 
more."  ^ 

Then  there  is  the  rare  and  strange  case  of  Margaret 
de  Camoys,  who  was  by  deed  of  her  husband  given  to 
Sir  William  Paynel.  Coke  recites  at  large  the  deed  for 
the  strangeness  thereof,  styling  it  "concessio  mirabilis  et 
inauditay  ^ 

He  gives  the  stories  of  Prince  Henry  and  Chief  Jus- 
tice Gascoyne,^  of  Robin  Hood  and  Little  John;^ 
John  Langton,  Lord  Chancellor,  temp.  Ed.  I,^  and  of 
King  Canute  and  the  sea ;  ^  the  story  of  how  the  Abbot 
of  Westminster  and  forty-eight  of  his  monks  broke  into 
the  Exchequer  and  feloniously  robbed  the  king  of  a 
hundred  thousand  pounds,  ''ad  damnum  inaestimabile,'" 
saith  the  record,''  and  the  story  of  Radulphus  de  Ing- 
ham, Chief  Justice  of  England,  who  altered  the  record  of 
a  fine  after  the  term  had  passed,  out  of  pity  for  a  poor 
defendant,  and  was  compelled,  by  way  of  fine,  to  erect 
Westminster  clock  and  clock  house  at  a  cost  of  £800.^ 

Coke  is  often  accused  of  narrow-mindedness  by  those 
who  have  not  studied  or  have  not  appreciated  his  life 
and  works.  He  was  doubtless  a  conservative,  as  all 
great  lawyers  are  apt  to  be,  but  in  many  ways  he  was 

1  12  Rep.  119. 

2  2  Inst.  435. 

3  3  Inst.  225. 
*  3  Inst.  197. 
6  2  Inst.  574. 
6  3  Inst.  207. 
'4  Inst.  112. 

'  4  Inst.  255.     See  as  to  Hengham's   clock,    Holdsworth's  His- 
tory, i,  91  n.  3;   ii,  244. 


190  The  Writings 

far  ahead  of  his  day  and  generation.  He  advocated  the 
humane  treatment  of  criminals  in  an  age  when  barbarity 
was  the  rule,  and  that  they  should  be  speedily  tried  and 
encouraged  to  answer  without  fear.^  He  urged  that 
prisoners  should  not  be  put  in  irons,  or  tortured  or  pun- 
ished before  hearing,  citing  Virgil's  verses  about  Rhada- 
manthus,  contrasting  this  with  the  Divine  method, 
" inn ocen tern,''  he  says,  "cogit  mentiri  dolor.''  ^ 

"There  are  two  great  adversaries  to  the  due  execution 
of  these  laws,  especially  in  criminal  causes,  viz.:  pre- 
cipitatio  et  morosa  cunctatio.  As  for  a  man  or  woman 
to  be  committed  to  prison  and  within  so  short  a  time  to 
be  indicted  and  arraigned  as  it  is  not  possible  for  them 
to  procure  their  witnesses  ....  in  criminalihus ,  pro- 
bationes  dehent  esse  luce  clariores."  ^  And  again:  .... 
"de  morte  hominis  nulla  est  cunctatio  longa."  * 

He  advocated  humanity  to  the  criminal  insane,^  and 
calls  attention  by  an  oft-quoted  illustration  to  the 
danger  of  circumstantial  evidence.^ 

In  other  of  his  suggestions  he  shows  broad-minded 
wisdom.  Surely  it  was  no  harsh  and  narrow-minded 
man  who  said:  "True  it  is  that  we  have  found  by  care- 
ful experience  that  it  is  not  frequent  and  often  punish- 
ment that  doth  prevent  like  offences,  praestat  cautela 
quam  medela;  those  offences  are  often  committed  that 
are  often  punished,  for  the  frequency  of  the  punishment 
makes  it  so  familiar  that  it  is  not  feared .  For  example, 
what  a  lamentable  case  it  is  to  see  so  many  Christian 
men  and  women  strangled  on  that  cursed  tree  of  the 

1  2  Inst.  316,  381,  386;   3  Inst.  91. 

23  Inst.  35;   Luke  xvi.  1;   John  vii.  51. 

3  3  Inst.  210. 

*  Co.  Litt.  134  b. 

53  Inst.  6. 

6  3  Inst.  232. 


Of  Sir  Edward  Coke  191 

gallows,  in  so  much  as  if  in  a  large  field  a  man  might  see 
together  all  the  Christians  that  but  in  one  year  through- 
out England,  come  to  that  untimely  and  ignominious 
death,  if  there  were  any  spark  of  grace  or  charity  in 
him,  it  would  make  his  heart  to  bleed  for  pity  and  com- 
passion." Coke  then  advocates  preventive  justice;  first, 
in  the  good  education  of  youth,  and  their  learning  a  trade 
in  their  tender  years;  secondly,  in  the  execution  of  good 
laws;  and  thirdly,  as  many  offend  in  the  hope  of  pardon, 
that  pardons  be  rarely  granted.^ 

"Laws,"  he  says,  "without  extreme  punishment  or 
penalty  are  better  obeyed  than  laws  made  with  great 
punishment,"^  and  "too  severe  laws  are  never  duly 
executed." ^ 

Coke  was  in  favor  of  allowing  the  accused  defendant 
in  criminal  cases  the  right  to  produce  witnesses,  and 
maintains  that  there  was  no  authority  in  the  common 
law  for  the  contrary  practice.  This,  he  says,  is  for  the 
better  discovery  of  the  truth,  and  he  tells  the  story  of  his 
introduction  by  Lord  Burleigh  to  the  queen  as  her 
Attorney  General.  "Madame,"  said  the  Lord  Treas- 
urer, "here  is  your  Attorney  General,  Qui  pro  Domina 
regina  seqtdtur,"  whereupon  Elizabeth  said  the  form 
should  be:  "Attornatus  Generalis,  qui  pro  Domina  veritate 
sequitury  * 

Something  should  be  said  about  Coke's  use  of  legal 
maxims.  All  the  law  books  and  reports  abounded  with 
them,  regulae  as  they  were  called,  short,  pithy  sentences 

^  3  Inst.  Epilogue. 

2  3  Inst.  24. 

3  3  Inst.  163. 

*  3  Inst.  79.  The  writer  is  informed  by  Charles  C.  Binney,  Esq., 
that  this  anecdote  suggested  to  Judge  Jeremiah  S.  Black,  when 
.  Attorney  General,  the  legend  on  the  seal  of  the  Department ;  Qui 
pro  Domina  Justitia  sequitur. 


192  The  Writings 

generally  in  Latin,  and  intended  to  express  or  emphasize 
a  general  principle  of  law.  They  were  like  popular 
proverbs  in  common  conversation.  They  point  the 
argument  and  adorn  the  opinion.  Coke's  writings  are 
filled  with  them  and  it  would  be  interesting  if  it  were 
possible  to  trace  their  origin.  Some  were  taken  from 
the  civil  law;  some  from  the  canonists;  some  from  the 
writings  of  Greek  and  Latin  authors ;  some  were  familiar 
sayings,  and  it  is  more  than  likely  that  many  were  the 
coinage  of  Coke's  private  mint.  Some  modern  writers 
deprecate  their  use,  regarding  them  as  inaccurate  or 
misleading.^  Undoubtedly  they  are  the  most  general 
of  general  rules  and  often  indicate  little  more  than  the 
point  of  view  of  him  who  uses  them,  and  should  be 
employed  with  judgment  in  the  light  of  experience,  like 
texts  of  Scripture.  They  are  the  result,  however,  of  a 
serious  attempt  to  reduce  the  law  to  scientific  principles 
like  axioms  in  geometry,  and  in  many  cases  do  really 
express  general  rules  of  law  or  public  policy  in  a  crystal- 
lized form.  No  one  need  hesitate  to  use  such  maxims  as 
the  following:  ^'Id  certum  est,  quod  certum  reddi  potest,''  ^ 
"Nemo  punitur  pro  alieno  delicto,''  ^  "No  one  can  take 
advantage  of  his  own  wrong,"  *  "Qui  sentit  commodiim 
sentire  debet  et  onus,"  ^  "Qui  facit  per  alium,  facit  per 
se,"  ^  "Vigilantihus  non  dormientihus  jura  subveniunt,'"' 
"Communis  error  facit  jus,"  ^  "Nemo  debet  bis  puniri 
pro  uno  delicto,"  ^  "Inclusio  unius  est  exclusio  alterius,"  ^'^ 

1  Lord  Esher  in  Yarmouth  v.  France,  19  Q.  B.  D.  647. 

2  Co.  Litt.  96  a;   142  a. 

3  Co.  Litt.  145  b. 
*  Co.  Litt.  148. 

5  Co.  Litt.  231  a. 

6  Co.  Litt.  258  a. 

7  2  Inst.  690. 

8  4  Inst.  240. 

9 11  Rep.  59  b. 
10  11  Rep.  59  a. 


Of  Sir  Edward  Coke  193 

"No  man  can  be  a  judge  in  his  own  cause,"  ^  "Melior 
est  conditio  possidentis,''  ^  "Malus  usus  abolendus 
estr  3 

Such  maxims  Coke  would  call  "a  sure  foundation  or 
ground  of  art  and  a  conclusion  of  reason."  ^ 

It  is  very  easy  for  us,  with  the  fruits  of  historical  re- 
search at  our  hand,  so  painfully  gathered  by  generations  of 
students,  to  condemn  Coke's  errors,  and  even  to  call  him, 
as  did  Maitland,  "the  credulous  Coke."  ^  We  may  smile 
or  frown  at  his  etymologies,  his  belief  in  witchcraft,  his 
views  of  trial  by  jury,  his  implicit  faith  in  The  Mirror 
and  its  stories  about  King  Alfred  and  King  Arthur.® 
Coke  himself  closed  his  labors  with  the  words:  "Blessed 
be  the  amending  hand,  Deo  gloria  et  gratia,''  and  would 
repeat  the  sentiment  now.''  His  faults,  I  have  said, 
were  the  faults  of  his  time,  his  excellencies  those  of  all 
time.  Let  us  overlook  his  errors  in  our  gratitude  for  the 
mighty  things  which  he  accomplished  for  the  common 
law. 

This  paper  might  readily  be  expanded  to  many  times 
its  length,  but  I  shall  conclude  with  something  of  what 
Coke  said  upon  the  subject  which  he  loved  most  of  all  — 
the  practice  and  the  study  of  the  law. 

"No  man  can  be  a  compleat  lawyer  by  universalitie 
of  knowledge  without  experience  in  particular  cases,  nor 

1 12  Rep.  114. 

2  2  Inst.  391;  2  Inst.  477;  4  Inst.  180. 

3  4  Inst.  274. 

*  Co.  Litt.  11a.  Bacon  made  a  collection  of  "Maxims  of  the 
Law." 

5  The  Mirror,  7  Seld.  Soc.  ix. 

«9  Rep.  Pref.;  10  Rep.  Pref.;  3  Inst.  224;  2  Inst.  498;  4  Inst. 
78  &c.  But  Coke  criticises  The  Mirror  upon  occasion.  2  Inst.  339; 
2  Inst.  377. 

^  4  Inst.  Epilogue,  citing  Plowden. 


194  The  Writings 

by  bare  experience  without  universalitie  of  knowledge; 
he  must  be  both  speculative  &  active,  for  the  science  of 
the  laws,  I  assure  you,  must  join  hands  with  experience. 
Experientia  (saith  the  great  philosopher)  est  cognitio 
singularium,  ars  vero  universalium.  The  learned  sages 
of  the  law  doe  found  their  judgment  upon  legall  reason 
and  judiciall  president. 

"But  it  is  safe  for  the  client  and  for  the  councellor 
also  (if  he  respects  his  conscience)  to  follow  presidents 
formerly  approved  and  allowed,  and  not  to  trust  to  any 
new  frame  carved  out  of  his  owne  invention,  for  Nihil 
simul  inventum  et  perfectum  est. 

"Read  these  presidents  (learned  reader)  and  reape 
this  faire  and  large  field,  the  delectable  and  profitable 
fruits  of  reverend  experience  and  knowledge;  which 
you  may  doe  with  greater  ease,  for  that  more  easily  shall 
you  learne  by  patterne  than  by  precept;  and  they  have 
beene  so  painfully  and  diligently  weeded,  as  it  cannot 
be  sayd,  that  in  this  fruitfull  field,  Infoelix  lolium  aut 
steriles  dominantur  avenae} 

"Common  law  is  nothing  else  but  common  reason,  and 
yet  we  mean  not  thereby  that  common  reason  wherewith 
a  man  is  naturally  endued,  but  that  perfection  of  reason 
which  is  gotten  by  long  and  continuall  study  .^ 

"The  knowledge  of  the  law  is  like  a  deepe  well,  out  of 
which  each  man  draweth  according  to  the  strength  of  his 
understanding.  He  that  reacheth  deepest,  he  seeth  the 
amiable  and  admirable  secrets  of  the  law,  wherein,  I 
assure  you,  the  sages  of  the  law  in  former  times  have  had 
the  deepest  reach.  And  as  the  bucket  in  the  depth  is 
easily  drawne  to  the  uppermost  part  of  the  water,  but 

^  Co.  Entries,  Preface. 

2C/.  Co.  Litt.  394  b.;  97  b;  Co.  Litt.  191  a;  Co.   Litt.  232  b; 
Co.  Litt.  319  b.     2  Inst.  179;   3  Inst.  100. 


Of  Sir  Edward  Coke  195 

take  it  from  the  water  it  cannot  be  drawne  up  but  with  a 
great  difficultie ;  so  albeit  beginnings  of  this  study  seem 
difficult,  yet  when  the  professor  of  the  law  can  dive  into 
the  depth  it  is  delightfull,  easie  and  without  any  heavy 
burthen,  so  long  as  he  keepe  himself  in  his  owne  proper 
element.  ^ 

"Whilest  we  were  in  hand  with  these  foure  parts  of  the 
Institutes,  we  often  having  occasion  to  go  into  the  city 
and  from  thence  into  the  country,  did  in  some  sort  envy 
the  state  of  the  honest  plowman  and  other  mechanics ; 
for  the  one  when  he  was  at  his  work  would  merrily  sing, 
and  the  plowman  whistle  some  selfpleasing  tune,  and  yet 
their  work  both  proceeded  and  succeeded;  but  he  that 
takes  upon  him  to  write,  doth  captivate  all  the  faculties 
and  powers  both  of  his  minde  and  body,  and  must  be  only 
intentive  to  that  which  he  collecteth,  without  any  ex- 
pression of  joy  or  cheerfulnesse,  whilest  he  is  at  work.^ 

"And  for  a  farewell  to  our  jurisprudent,  1  wish  unto 
him  the  gladsom  light  of  jurisprudence,  the  lovelinesse 
of  temperance,  the  stabilitie  of  fortitude  and  the  soliditie 
of  justice."  ^ 

1  Co.  Litt.  71  a. 
^  4  Inst.  Epilogue. 
'  Co.  Litt.  Epilogue. 


VI 

The  Influence  of  Biblical  Texts 
Upon  English  Law 


The  Influence  of   Biblical  Texts 
Upon  English  Law ' 

The  subject  of  this  address,  "The  Influence  of  Biblical 
Texts  Upon  English  Law,"  must  appear  peculiarly 
unattractive.  It  suggests  upon  one  hand  a  sermon,  on  the 
other  hand  a  law  lecture;  and  if  there  is  anything  less 
alluring  than  a  sermon,  especially  on  a  week-day,  it  would 
be  a  lecture  on  law;  and  if  there  is  anything  more  repel- 
lant  than  a  lecture  on  law,  I  suppose  it  would  be  a 
sermon.  The  combination  would  be  deadly.  It  was  prob- 
ably for  this  reason  that  the  committee  in  charge  of  this 
performance  did  not  announce  my  subject  in  advance, 
so  I  can  only  give  you  this  brief  warning  of  what  you  will 
have  to  endure.  After  this,  in  Biblical  phrase,  your 
blood  be  upon  your  own  head;  in  legal  language,  volenti 
non  fit  injuria  —  that  is,  no  one  can  complain  who  is 
willing  to  be  hurt. 

At  the  outset  it  may  be  proper  to  say  what  excuse 
there  may  be  for  selecting  such  a  subject  for  a  Phi  Beta 
Kappa  address. 

The  object  of  our  society  is  stated  in  its  constitution 
to  be  the  promotion  of  literature,  and  our  motto  indicates 
that  philosophy,  including  religion  and  ethics,  is  worthy 
of  cultivation  as  the  guide  of  life.  In  selecting  a  topic 
for  this  address,  I  felt  that  I  must  not  wander  too  far 
from  this  profession  of  faith,  and  yet  that  for  practical 
reasons  I  was  restricted  to  some  subject  within  the  nar- 
rower orbit  of  my  own  profession.  But  in  a  way  the 
study  of  law  will,  especially  when  undertaken  from  its 

'  Address  before  the  Phi  Beta  Kappa  and  Sigma  Xi  Societies, 
June  14,  1910. 


200  The  Influence  of  Biblical  Texts 

historical  side,  inevitably  lead,  through  more  or  less  de- 
vious windings,  into  the  whole  world  of  learning  and 
literature  —  for  law  is  the  system  of  rules  governing  the 
conduct  of  men  as  members  of  society  and  their  recip- 
rocal rights  and  duties.  The  study  of  the  law,  therefore, 
touches  and  surrounds  the  problems  of  history,  politics, 
social  economics,  ethics,  religion  and  philosophy,  as  the 
air  which  we  breathe  without  feeling  its  weight  envelops 
the  earth  and  all  who  dwell  thereon.  It  is  a  strictly  his- 
torical science,  the  product  of  centuries  of  development 
and  evolution,  and  like  natural  science  exhibits  a  con- 
tinuous adaptation  to  surrounding  circumstances,  with 
consequent  diversification  and  improvement,  leading 
from  lower  up  to  higher  and  better  forms.  As  has  been 
pointed  out,  and  perhaps  the  comparison  may  reconcile 
the  members  of  the  Sigma  Xi  to  the  subject  of  this  paper, 
"the  general  facts  upon  which  the  theory  of  evolution 
by  natural  selection  rests,  namely,  the  straggle  for  exis- 
tence, the  survival  of  the  fittest,  and  heredity,  have  all 
of  them  their  parallels  or  analogies  in  the  realm  of  Juris- 
prudence." 

Our  law  is  not  like  Melchisedec — "without  father,  with- 
out mother,  without  genealogy,  having  neither  beginning 
of  days  nor  end  of  life."  The  law,  like  everything  we  do 
and  like  everything  we  say,  is  a  heritage  from  the  past. 

Sir  Francis  Bacon  long  ago  said,  "The  law  of  England 
is  not  taken  out  of  Amadis  de  Gaul,  nor  the  Book  of 
Palmerin,  but  out  of  the  Scripture,  out  of  the  laws  of  the 
Romans  and  Grecians."  And  again,  he  said,  "Our  laws 
are  as  mixed  as  our  language." 

So  just  as  our  English  language  has  sprung  from 
Anglo-Saxon,  Teutonic,  French,  Latin  and  Greek  roots, 
our  English  common  law  with  its  unsurpassed  powers  of 
assimilation,  elimination  and  expansion,  has  its  origins 
in  old  local  customs,  the  civil  law,  the  canon  law  of  the 


upon  English  Law  201 

Church,  the  writings  of  philosophers  and  texts  of  Scrip- 
ture, interwoven  with  the  accumulation  of  a  thousand 
years  of  statutes  and  judicial  decisions.  To  speak  in  a 
parable,  it  is  like  the  air  plant,  growing  by  the  way- 
side in  Bermuda,  which,  even  when  torn  from  its  native 
soil,  still  keeps  on  growing,  deriving  its  nutrition  from 
every  one  of  the  four  winds  of  Heaven;  or,  again,  like 
the  banyan  tree,  whose  branches,  wherever  they  touch  the 
earth,  take  fresh  root  and  spring  anew. 

Now  every  man  is  presumed  to  know  the  law.  Ben- 
tham,  in  speaking  of  judge-made  law,  called  it  "dog  law." 
"Do  you  know,"  he  said,  "how  they  make  it?  Just  as  a 
man  makes  laws  for  his  dog.  When  your  dog  does  any- 
thing you  want  to  break  him  of,  you  wait  until  he  does 
it,  and  then  beat  him  for  it.  This  is  the  way  you 
make  laws  for  your  dog;  and  this  is  the  way  the  judges 
make  law  for  you  and  me."  Nevertheless,  you  are  all 
supposed  to  know  the  law,  and  likewise  you  are  all  sup- 
posed to  know  the  Bible.  What  I  am  to  say,  therefore, 
about  a  certain  connection  between  the  law  and  the  Bible, 
is  theoretically  supposed  to  be  entirely  familiar  to  you, 
and  indeed  to  say  that  the  Bible  in  many  ways  has 
exerted  a  mighty  influence  on  our  law  is  a  platitude  so 
profound  that  I  can  scarcely  hope  to  be  excused  for 
having  uttered  it. 

This  influence  has  been  manifested  in  several  very 
distinct  ways,  with  only  one  of  which  we  shall  deal  this 
afternoon. 

First,  of  course,  there  is  the  general  influence  of  the 
Bible  through  the  medium  of  the  Christian  religion  upon 
the  law.  It  has  been  often  said,  indeed,  that  Christianity 
is  part  of  the  common  law  of  England,  and  this  is  due  in 
great  measure  to  the  authority  of  Sir  Matthew  Hale 
{King  V.  Taylor,  1  Vent.  293;  3  Keble  507),  Blackstone 
and  other  writers,  while  Lord  Mansfield  held  {Chamberlain 


202  The  Influence  of  Biblical  Texts 

of  London  v.  Evans,  1767)  that  the  essential  principles 
of  revealed  religion  are  part  of  the  common  law.  The 
former  proposition  has  some  support  also  in  the  decisions 
of  our  own  State,  but  in  its  broad  and  general  sense  is 
without  adequate  foundation,  as  has  been  frequently 
demonstrated.  There  can  be,  however,  no  doubt  that 
the  principles  of  the  Christian  religion  have  profoundly 
affected  the  law.  Christianity  supplied,  as  it  were,  the 
atmosphere  of  public  opinion  which  surrounded  the 
English  people,  the  legislature  and  the  courts,  but  its 
precise  effect  would  be  an  almost  impossible  task  to 
determine. 

Of  course,  the  Ten  Commandments  will  occur  to  every 
one  as  examples  of  Biblical  laws  which  were  adopted  into 
our  own.  Disbelief  in  God,  as  well  as  disbelief  in  Christ, 
Blasphemy,  Sabbath  Desecration,  Theft,  Adultery,  Hom- 
icide, Perjury,  to  mention  the  chief  offenses,  were  either 
punished  by  the  spiritual  or  the  civil  courts,  or  by  both. 
The  history  of  heresy  alone  in  England,  with  all  that  it 
involved,  the  hatreds,  the  persecutions,  the  judicial 
murders  which  it  narrates,  forms  one  of  the  saddest 
chapters  in  human  history.  With  none  of  this  are  we 
concerned  at  present. 

Second,  there  is  the  special  influence  of  the  Church 
and  the  law  of  the  Church  upon  the  common  law. 

We  who  live  in  modern  times,  when  the  State  is  the 
supreme  and  only  source  of  law,  and  the  Church  is  abso- 
lutely deprived  of  temporal  authority,  find  it  hard  to 
realize  that  for  many  centuries  the  Church  exercised  an 
authority  quite  as  important  as  that  of  the  State,  that 
its  jurisdiction  extended  over  and  regulated  the  minutest 
detail  of  the  daily  life  of  every  man,  and  that  its  laws 
were  administered  by  courts  whose  sentence  of  excom- 
munication practically  cut  off  the  culprit  from  all  rights 
and  privileges  as  a  member  of  society.     He  could  not  be 


upon  English  Law  203 

a  juryman,  a  witness,  nor  a  suitor  in  the  civil  courts,  and 
if  pertinacious,  could  be  kept  in  prison  indefinitely.  The 
ecclesiastical  courts  of  England  have  a  longer  pedigree 
than  those  of  the  common  law;  for  the  Church,  of  which 
they  formed  thejudicial  branch,  antedated  the  Conquest, 
and  through  the  Church  courts,  the  Popes  exerted  their 
authority  over  all  Christendom.  The  canon  lawyers 
compiled  a  great  system  of  law,  only  comparable  to  that 
of  the  Roman  or  civil  law,  and  this  law  was  held  by  the 
Church  to  be  superior  to  the  common  law  of  the  land, 
just  as  the  Church  claimed  superiority  over  the  State, 
and  the  Pope  over  the  King.  Even  after  the  Reforma- 
tion, when  Henry  VIII  boldly  asserted  the  royal  su- 
premacy, the  canon  law  of  the  Catholic  Church  became 
the  King's  ecclesiastical  law  of  the  Church  of  England. 
The  Church  courts  exercised  a  corrective  jurisdiction 
over  the  religious  beliefs  and  morals  of  both  the  clergy 
and  laity.  All  matrimonial  questions  were  settled  in  these 
courts,  they  also  granted  probate  of  wills  and  letters  of 
administration,  and  to  a  great  extent  controlled  executors 
and  administrators. 

This  law  of  the  Church  was  founded  upon  the  Holy 
Scriptures  as  expanded  and  interpreted  by  the  decrees 
of  the  Popes  and  the  glosses  of  commentators.  Its 
influence  upon  the  system  of  the  common  law  was 
greater  than  is  generally  supposed,  and  through  it  the 
Bible  has  had  much  indirect  effect. 

But  in  the  third  place,  and  this  is  the  narrower  subject 
of  this  paper,  we  find  scattered  here  and  there  throughout 
the  statutes,  law  treatises  and  reports  of  judicial  decisions, 
many  legal  rules  which  were  held  either  to  be  directly 
founded  upon  certain  texts  of  Scripture,  or  at  least 
profoundly  affected  and  strengthened  by  them. 

The  Old  Testament  was  indeed  considered  as  supple- 
mented rather  than  supplanted  by  the  New,  but  subject 


204  The  Influence  of  Biblical  Texts 

to  this  qualification,  —  the  Bible,  although  it  consisted 
not  of  one  book,  but  of  many  books,  written  at  periods 
of  time  far  removed  from  one  another,  and  from  different 
points  of  view,  in  divers  tongues,  and  in  the  literary 
forms  peculiar  to  an  ancient  and  Eastern  civilization, 
was  considered  as  the  permanent  expression  of  the  divine 
will,  and  almost  every  text  an  inspired  oracle  for  the 
guidance  of  all  men  in  all  countries  and  at  all  times. 
Interpretation  and  criticism  were  practically  unknown; 
the  histories  of  the  early  Semitic  tribes,  their  pro- 
phetic exhortations,  their  poetry,  lyric  and  dramatic, 
and  their  laws,  were  all  received  on  the  same  basis;  and 
a  text  of  the  Bible,  wherever  it  might  be  found,  and 
whatever  might  be  its  logical  connection,  was  regarded 
as  an  infallible  authority.  Indeed,  in  the  fundamental 
laws  of  the  Colonies  of  Massachusetts,  Connecticut,  New 
Haven  and  West  New  Jersey,  the  judges  were  com- 
manded to  inflict  penalties  according  to  the  law  of  God. 
The  study  of  the  Scriptures  was  especially  associated 
with  the  study  of  law.  Chief  Justice  Fortescue,  in  his 
book,  De  Laudibus,  said  of  the  judges,  that  after  court 
"when  they  have  taken  their  refreshments,  they  spend 
the  rest  of  the  day  in  the  study  of  the  laws,  reading  of 
the  Holy  Scriptures,  and  other  innocent  amusements, 
at  their  pleasure." 

All  through  the  middle  ages,  and  indeed  for  long  after, 
men  craved  authority  for  all  they  thought,  said  and  did. 
The  Bible  was,  of  course,  first,  with  the  writings  of  the 
Fathers  of  the  Church  second;  but  Aristotle,  "The 
Philosopher,"  especially  as  his  works  were  reconciled 
with  Christianity  through  the  writings  of  St.  Thomas 
Aquinas,  was  followed  with  almost  equal  devotion;  and 
many  of  the  Latin  poets  and  Cicero  served  in  default  of 
something  better.  Virgil  was  particularly  esteemed, 
being  regarded  as  almost  a  forerunner  of  Christianity; 


upon  English  Law  205 

indeed  St.  Paul  was  supposed  to  have  shed  tears  over 
Virgil's  tomb  in  his  regret  that  he  had  never  seen  the 
greatest  of  the  poets  in  life. 

"Ad  Maronis  mausoleum 
Ductus  fudit  super  eum 

Piae  rorem  lacrimae; 
'Quant  te,'  inquit,  'reddidissem 
Si  te  vivum  invenissem, 

Poetarum  maxime.'  " 

We  will  now  consider  briefly  some  of  the  more  striking 
instances  of  the  influence  exercised  by  specific  texts. 

That  husband  and  wife  are  in  law  one  person  was  an 
axiom  of  the  common  law,  and  the  old  joke  was  that  the 
one  person  was  the  husband.  "This  is  now  bone  of  my 
bones  and  flesh  of  my  flesh";  .  .  .  "And  they  shall  be 
one  flesh."  Gen.  2:  23.  Such  texts  as  these  and  the 
inferior  position  of  the  wife  in  the  Old  Testament  had  a 
powerful  effect  upon  the  law  of  married  women.  The 
law  of  the  Church  followed  these  texts,  and,  by  emphasiz- 
ing the  sacramental  character  of  the  marriage  relation, 
produced  a  result  which  harmonized  well  with  the  feudal 
system.  For  many  centuries  the  laws  governing  mar- 
ried women  in  regard  to  the  marriage  bond  itself,  her 
dealings  with  the  outside  world  in  matters  of  contract 
and  of  tort,  her  capacity  to  own  real  and  personal  prop- 
erty, were  all  grounded  upon  this  theory,  and  so  continued 
until  very  recent  times. 

Another  text  which  had  great  importance  in  the  law 
of  marriage  was  that  in  Matthew  19:  6-9,  Mark  10:  9, 
where  Christ,  after  repeating  the  text  from  Genesis, 
added,  "What  therefore  God  hath  joined  together,  let 
not  man  put  asunder,"  to  which  he  added  the  rule  which 
is  understood  to  allow  divorce  only  on  the  grounds  of 
infidelity.     These  commands  of  Christ,  given  also  in  the 


206  The  Influence  of  Biblical  Texts 

Sermon  on  the  Mount  and  contained  besides  in  the 
Gospel  of  St.  Luke,  are  the  foundation  of  our  law  of 
marriage. 

The  political  thought  of  the  Middle  Ages  affords  a 
curious  instance  of  the  application  of  Biblical  texts  to 
the  theory  of  a  corporation.  A  body  corporate  was  a 
phrase  which  instantly  suggested  or  was,  perhaps,  sug- 
gested by  the  language  of  St.  Paul  in  speaking  of  the 
Church  as  Christ's  body:  —  "We  being  many  are  one 
body  in  Christ,"  Romans  12:  4,  5;  "Now  ye  are  the 
body  of  Christ  and  members  in  particular,"  I  Corinthians 
12:  27.  Indeed  the  whole  of  that  chapter  is  based  upon 
the  comparison,  and  St.  Paul  in  other  of  his  epistles  refers 
to  the  same  idea,  which  is  reflected  in  the  theory  that  a 
corporation  is  an  artificial  body  composed  of  divers  con- 
stituent members,  but  without  a  full  and  independent 
personality.  The  most  usual  corporations  were  of  course 
ecclesiastical,  to  which  St.  Paul's  metaphor  directly 
applied,  but  the  idea  was  naturally  extended  to  civil  cor- 
porations, notably  the  State  itself,  and  then  generally  to 
all.  The  members  of  a  corporation  were  its  limbs,  its 
officers  were  its  organs,  its  franchises  were  compared  to 
the  ligaments.  Such  a  body  must  have  a  head,  or  it 
could  not  act ;  the  death  of  an  abbot,  for  example,  worked 
a  serious  inconvenience.  All  this  entered  into  the  dis- 
cussion which  was  waged  between  the  nominalists  and 
realists  of  the  day,  whether  corporations  were  real  or 
ideal,  actual  or  fictitious  things,  and  the  echoes  of  the 
controversy  are  reverberating  to  the  present  time. 

Slavery  was  a  matter  of  course  in  ancient  times  in  all 
countries.  The  Old  Testament  form  of  it  was  particularly 
mild  and  humane.  In  theory,  at  least,  a  slave  was  a 
member  of  his  master's  household,  or  might  become  such 
by  having  his  ear  pierced  with  an  awl  and  thus  fastened 
to  the  door  post.    This  made  his  slavery  permanent,  as 


upon  English  Laiv  207 

it  annexed  him  to  the  home,  or  it  may  be  that  by  the 
"door  post"  was  meant  the  gate  of  the  camp  or  city,  which 
gave  formal  pubHcity  to  the  proceeding.  And  in  Deut. 
23: 15,  a  fugitive  slave  was  to  be  protected  when  he  fled 
from  his  master.  St.  Paul,  on  the  other  hand,  sent  back 
Onesimus  to  his  master,  Philemon,  though  with  an  injunc- 
tion to  treat  him  kindly,  and  in  his  Epistle  to  the  Ephe- 
sians  exhorted  slaves  to  be  obedient  to  their  masters. 
Yet  in  numerous  passages  he  speaks  of  the  distinction 
between  slave  and  freeman  as  having  no  meaning  in  their 
relationship  to  God.  He  himself  was  a  bond  servant  to 
Christ.  The  condition  of  slavery,  in  other  words,  was 
only  external,  having  no  existence  in  the  spiritual  life 
"where  there  is  neither  Greek  nor  Jew,  bond  nor  free, 
but  Christ  is  all  and  in  all."  And  on  Mars'  Hill  St.  Paul 
declared  that  God  had  made  of  one  blood  all  nations  of 
men,  for  in  Him  we  live,  move  and  have  our  being,  quoting 
what  the  poet  Aratus  said,  "For  we  are  also  his  offspring." 

The  early  Fathers,  and  the  Church  down  to  modern 
times,  recognized  slavery  in  the  same  way.  St.  Gregory 
repeated  the  theory  inherited  from  the  Greek  philosophy 
that  all  men  are  by  nature  equal,  and  reconciled  it  with 
the  institution  of  slavery  by  holding  the  latter  to  be  a 
concession  to  necessary  conditions  of  human  life  and  one 
of  the  consequences  of  sin.  He  who  commits  sin  is  the 
servant  of  sin. 

In  the  bitter  controversies  over  slavery  and  the  Fugitive 
Slave  Laws  which  preceded  our  Civil  War,  no  authority 
was  quoted  with  greater  confidence  than  was  St.  Paul, 
and  he  who  argued  against  the  injustice  of  slavery  was 
held  to  be  an  opponent  of  the  revealed  will  of  God ;  while 
on  the  other  hand,  Emerson,  in  his  speech  on  the  Fugitive 
Slave  Law,  unhesitatingly  afifirmed  that  an  immoral  law 
was  void  and  appealed  for  support  to  the  Bible,  which 
he  said  was  a  part  of  every  technical  law  library. 


208  The  Influence  of  Biblical  Texts 

So  St.  Paul  said,  "Let  every  soul  be  in  subjection  to 
the  higher  powers:  the  powers  that  be  are  ordained  of 
God . "  " Fear  God ,  honour  the  king. ' '  These  and  similar 
texts  in  later  times  became  the  ground  of  the  formal  theory 
of  the  Divine  Right,  which  made  so  much  mischief  in  the 
history  of  our  constitutional  law.  But  in  other  well- 
known  passages  St.  Paul  holds  that  the  end  of  civil 
government  is  to  be  the  avenger  for  wrath  to  him  who 
doeth  evil;  its  divine  institution  was  for  that  purpose, 
and  only  so  far  as  that  purpose  was  fulfilled  did  govern- 
ment retain  its  sacred  character.  In  short,  the  Bible 
contains  an  arsenal  of  texts,  from  which  the  advocates 
of  the  Divine  Right  on  one  side,  and  the  defenders  of 
human  freedom  and  equality  on  the  other,  freely  selected 
their  weapons. 

The  medieval  doctrine  of  the  unlawfulness  of  usury, 
that  is,  the  charging  of  interest  for  the  loan  of  money, 
produced  a  profound  impression  upon  social  and  eco- 
nomic progress.  The  texts  which  forbade  it  are  familiar. 
Exodus  22:  25,  and  Levit.  25:  36  prohibited  the  exac- 
tion of  interest  from  the  poor,  which  practically  included 
at  that  time  every  one  who  wanted  to  borrow ;  and  while 
the  later  code  of  Deut.  23: 19  allowed  the  Jews  to  charge 
interest  on  loans  to  foreigners,  the  XVth  Psalm  de- 
scribed a  citizen  of  Zion  as  one  who  putteth  not  out  his 
money  to  usury;  and  Christ  himself  in  the  Sermon 
on  the  Mount,  Luke  6:35,  directed  his  disciples  to 
lend,  "hoping  for  nothing  again."  Aristotle,  moreover, 
declared  that  money  being  by  nature  barren  or  unpro- 
ductive, to  extract  offspring  from  it  must  necessarily 
be  contrary  to  nature,  it  being  remembered  that  the 
Greek  word  rd/cos  meant  both  "child"  or  "offspring" 
and,  derivatively,  interest.  There  could  be  no  question 
as  to  the  iniquity  of  a  practice  forbidden  by  both  Aris- 
totle and  the  Bible,  so  all  through  the  Middle  Ages  and 


upon  English  Law  209 

long  afterwards,  usury  was  regarded  with  peculiar  abhor- 
rence as  a  mortal  sin,  although  avarice,  triumphant  over 
piety,  continually  evaded  the  law  by  ingenious  devices. 
And  indeed  in  those  days  men  borrowed  not  so  much 
to  use  money  in  business  or  commerce  as  to  relieve 
pressing  necessity;  the  debtor  was  a  poor  man  who  bor- 
rowed as  a  last  resort  to  support  himself  and  his  family, 
and  the  creditor  in  recovering  his  loan  would  take  all  that 
his  victin  owned.  Money  lending,  therefore,  was  left 
to  the  Jews,  who  being  without  the  pale  of  the  Church 
were  not  regarded  as  subject  to  its  laws,  and  it  was 
thought  were  damned  already,  though,  of  course,  the 
practice  was  not  legal  with  them  any  more  than  it  was 
with  Christians.  The  natural  effect  was  to  increase 
vastly  the  rate  of  interest  charged  in  order  to  insure  the 
contingent  losses  of  an  illegal  and  vastly  unpopular  busi- 
ness. He  who  ran  the  risk  of  odium  and  temporal  loss 
in  this  world,  and  damnation  in  the  next,  naturally  made 
the  most  while  he  could  out  of  his  iniquitous  enterprise; 
the  rates  of  interest  rose  to  enormous  percentages  and  the 
restrictions  on  trade  and  commerce  became,  as  trade  and 
commerce  increased,  unbearable.  The  practical  wisdom  of 
Elizabeth's  Parliament  repealed  the  earlier  acts  in  13  Eliza- 
beth 8,  and  avoided  all  contracts  for  interest  over  10%. 

The  curious  and  horrible  history  of  witchcraft  in  Eng- 
land, Old  and  New,  is  due  to  the  misapplication  of  the 
well-known  text  in  Exodus  22:  18,  "Thou  shalt  not  suffer 
a  witch  to  live."  This  injunction  was  reinforced  by  the 
references  in  Deut.  18:  9  to  sorcerers,  charmers  and  con- 
suiters  with  familiar  spirits,  and  in  Levit.  20:  27;  such 
offenders  were  doomed  to  be  stoned.  The  Hebrews,  like 
all  ancient  people,  were  profoundly  superstitious,  and 
firm  believers  in  such  things.  Saul  himself  is  stated  in 
I  Samuel  28:  9  to  have  driven  the  wizards  and  mediums 
from  the  country,  yet  in  his  last  extremity  he  consulted 


210  The  Influence  of  Biblical  Texts 

the  Witch  of  Endor,  who  procured  for  him  a  seance  with 
the  prophet  Samuel.  The  evil  effects  of  witchcraft  upon 
a  superstitious  people  may  be  fairly  estimated  by  what 
we  see  in  present  times  of  their  modern  representatives, 
and  the  penalty  of  death,  though  apparently  severe,  was 
doubtless  not  an  unreasonable  police  regulation  some 
eight  centuries  before  Christ.  But  the  command,  "Thou 
shalt  not  suffer  a  witch  to  live,"  was  transplanted  to 
England  after  an  interval  of  over  two  thousand  years,  as 
though  it  were  intended  to  apply  everywhere  and  for 
all  time,  and  "these  awful  words,"  says  Mr.  Lea,  in  his 
History  of  the  Inquisition,  "have  served  as  a  justifica- 
tion for  more  judicial  slaughter  than  any  other  sentence 
in  the  history  of  human  jurisprudence."  Statutes  were 
passed  upon  the  subject  during  the  reign  of  Henry  VHI 
and  Elizabeth,  and  in  the  following  century,  James  I, 
who  firmly  believed  in  Demonology,  procured  the  pas- 
sage of  a  drastic  act  in  the  first  year  of  his  reign.  The 
best-known  examples  of  persecution  for  witchcraft  were 
the  case  of  the  Lancashire  witches  in  1634,  and  the  case 
of  the  Norfolk  witches  ten  years  later,  in  which  latter 
affair  about  fifty  persons  were  executed.  One  pathetic 
feature  of  this  unhappy  time  is  that  it  was  the  fervently 
religious  people  who  believed  most  implicitly  in  the  guilt 
of  the  wretched  old  women  who  were  accused.  Sir 
Matthew  Hale  was  one  of  the  brightest  ornaments  of  the 
English  Bench,  yet  it  was  he  who  presided  in  1665  at  the 
trial  of  witches  in  Bury  St.  Edmunds,  where  Sir  Thomas 
Browne,  the  author  of  the  Religio  Medici,  gave  his 
expert  testimony  against  the  defendants.  Bacon,  Ral- 
eigh, Selden  and  other  famous  and  brilliant  men  were  all 
infected  with  the  same  terrible  error,  and  in  fact  the  acts 
were  not  repealed  until  1736. 

Blackstone  IV,  60,  says  at  a  later  date,  "To  deny  the 
possible,   nay   the   actual   existence   of   witchcraft   and 


upon  English  Law  211 

sorcery  is  at  once  flatly  to  contradict  the  revealed  word 
of  God  in  various  passages  both  of  the  Old  and  New 
Testament." 

Those  who  read  the  testimony  as  set  forth  in  Hutchin- 
son on  Witchcraft,  Potts'  Discoverie,  and  the  case  of 
Temperance  Lloyd  in  the  State  Trials,  8,  1018,  will  be 
saddened  and  amazed  at  the  record  of  credulity  and 
superstition.  In  New  England  the  case  of  the  Salem 
witches  is  well  known,  but  in  Pennsylvania  there  is  no 
such  sad  record.  Only  one  trial  for  witchcraft  appears 
to  have  taken  place  in  this  Province,  and  in  that  the 
verdict  was  "not  guilty,"  though  coupled  with  a  finding 
that  the  defendant  was  guilty  of  "having  the  common 
fame  of  a  witch." 

While  it  would  be  too  much  to  assert  that  all  of  this 
was  due  to  the  Biblical  texts  referred  to,  it  is  certain 
that  for  many  years  doubters  were  silenced  by  the  sup- 
posedly Divine  authority. 

There  was  an  ancient  rule  that  any  animate  or  inani- 
mate thing  that  caused  the  death  of  a  human  being  should 
be  dec  dandum,  that  is,  "given  to  God,"  which  in  prac- 
tice meant  that  the  deadly  thing  or  its  value  was  handed 
over  to  the  king  as  the  price  of  blood,  to  be,  at  least  theo- 
retically, devoted  by  his  almoner  to  pious  uses,  or  objects 
of  charity.  The  law  seems  to  have  especially  applied  in 
cases  where  the  death  was  caused  by  something  in 
motion,  like  a  horse  that  throws  its  rider,  or  a  cart  that 
runs  over  a  man.  Mrs.  Green  thus  describes  the  law: 
"If  a  peasant  were  kicked  by  his  horse,  if  in  fishing  he 
fell  from  his  boat,  or  if  in  carrying  home  his  eels  or 
herrings  he  stumbled  and  was  crushed  by  the  cart  wheel, 
his  wretched  children  saw  horse,  or  boat  or  cart  with  its 
load  of  fish,  which  in  olden  days  had  been  forfeited  as 
deodand  to  the  service  of  God,  now  carried  off  to  the 
king's  hoard."     And  for  centuries  in  every  indictment 


212  The  Influence  of  Biblical  Texts 

for  homicide  the  value  of  the  weapon  which  caused  the 
death  was  always  stated. 

This  rule  is  very  ancient  and  most  likely  antedated 
the  time  when  the  Bible  had  any  very  great  influence  in 
shaping  the  law,  but  Lord  Coke,  followed  by  Blackstone, 
grounds  it  expressly  upon  the  law  of  God  as  stated  in 
Exodus  21:  28:  "If  an  ox  gore  a  man  or  a  woman  that 
they  die,  then  the  ox  shall  be  surely  stoned  and  his  flesh 
shall  not  be  eaten."  It  is  a  strange  example  of  the  per- 
sistence of  ancient  law  that  deodands  were  not  abolished 
in  England  by  statute  until  1846.  (9  and  10  Vict.  c.  62.) 
It  is,  however,  worthy  of  consideration  whether  modern 
conditions  do  not  call  for  a  revival  of  the  law.  If  every 
automobile  or  trolley  car,  for  instance,  which  causes  the 
death  of  man,  woman  or  child,  were  forfeited  by  the 
owner,  it  is  very  likely  that  the  number  of  accidents 
would  suddenly  decrease. 

A  curious  parallel  with  the  law  of  deodands  was 
drawn  from  the  covenant  with  Noah  in  Genesis  9:  5: 
"And  surely  your  blood  of  your  lives  will  I  require;  at 
the  hand  of  every  beast  will  I  require  it,  and  at  the 
hand  of  man";  and  from  the  requirement  that  a  homi- 
cidal animal  should  be  put  to  death.  These  texts  were 
considered  by  the  medieval  Church  as  authority  for  the 
prosecution  and  punishment  of  delinquent  animals.  In 
France,  Germany  and  other  continental  countries  many 
curious  indictments  were  preferred  against  rats,  mice 
and  other  destructive  vermin,  as  well  as  vicious  animals 
who  killed  or  injured  men,  but  as  no  such  prosecutions 
seem  to  have  been  brought  in  England,  the  subject  lies 
beyond  our  limits. 

The  famous  privilege  claimed  and  enjoyed  for  cen- 
turies by  the  priesthood,  known  as  Benefit  of  Clergy  was, 
according  to  Blackstone,  founded  upon  the  text,  "Touch 
not  mine  anointed  and  do  my  prophets  no  harm."  (4 
Blacks.  365,  Keilwey  181.) 


upon  English  Law  213 

Benefit  of  Clergy  was  one  of  the  most  important  heads 
of  medieval  criminal  law,  and  meant  briefly  that  an 
ordained  clerk  or  clergyman  who  committed  any  of  the 
graver  crimes  known  as  felonies  could  only  be  tried  by 
an  ecclesiastical  court,  and  only  be  punished  by  such 
punishment,  that  is,  penance,  as  such  court  might  decree. 
The  result  was  that  when  any  one  in  holy  orders  commit- 
ted a  crime,  he  could  plead  his  clergy,  and  the  civil  courts 
were  then  obliged  to  turn  him  over  to  ihe  ecclesiastical 
authorities;  and  as  he  was  entitled  before  them  to  be 
discharged  by  what  was  called  compurgation,  upon  his 
swearing  that  he  was  innocent  and  procuring  others 
who  would  swear  as  a  matter  of  form  that  they  believed 
him,  the  clerical  criminal  became  practically  immune 
from  punishment.  The  doctrine  soon  developed  that  all 
who  were  sufficiently  learned  to  be  able  to  read  were  con- 
sidered clerks,  and  entitled  to  benefit  of  clergy,  and  this 
produced  a  condition  of  things  for  which  the  only  excuse 
is  that  the  frightful  barbarity  of  the  criminal  was  merci- 
fully tempered.  Indeed  the  privilege  was  finally  extended 
to  all  who  could  read  what  was  called  the  "neckverse," 
a  single  verse  of  the  Bible  by  custom  taken  from  the 
fifty-first  Psalm.  "Have  mercy  upon  me,  O  God,  ac- 
cording to  thy  loving  kindness;  according  unto  the  mul- 
titude of  thy  tender  mercies,  blot  out  my  transgressions." 
In  the  reign  of  Henry  VII,  burning  in  the  hand  was  sub- 
stituted for  the  ecclesiastical  compurgation  in  order  that 
the  advantage  of  committing  crime  might  not  be  enjoyed 
a  second  time,  the  theory  apparently  being  that  every 
educated  man  was  entitled  to  commit  one  felony  in  the 
course  of  his  life.  At  its  best,  benefit  of  clergy  was  a 
clumsy  device  to  mitigate  the  severity  of  the  criminal  law ; 
at  its  worst,  it  nullified  the  law  in  favor  of  those  persons 
who  had  least  excuse  for  breaking  it.  And  yet  Benefit 
of  Clergy  was  not  formally  abolished  until  1827.  (7  and 
8  George  IV,  c.  28.) 


214  The  Influence  of  Biblical  Texts 

Among  the  ancient  Hebrews  the  law  of  blood  revenge 
caused  the  institution  of  the  altar  asylum.  You  will 
remember  how  Cain  feared  the  Avenger  after  killing 
Abel,  and  how  Joab  in  I  Kings  2 :  28  fled  to  the  Tabernacle 
of  the  Lord  and  caught  hold  of  the  horns  of  the  altar. 
So  there  were  also  set  aside  cities  of  refuge  as  places 
where  the  innocent  manslayer  might  flee  for  protection 
from  the  avenger  of  blood,  the  victim's  next  of  kin,  who 
might  in  accordance  with  Numbers  35 :  19  slay  the  mur- 
derer. According  to  the  narrative  in  Deut.  19:  1  and 
4:41  Moses  selected  Bezer  in  the  wilderness,  Ramoth  in 
Gilead  and  Golan  in  Bashan,  and  in  Numbers  35:  14, 
three  cities  were  provided  in  Canaan  and  three  on  the 
other  side  of  Jordan.  But  intentional  murder  was  not 
protected.  In  Exodus  21 :  14  it  is  provided  that  if  a  man 
slay  his  neighbor  with  guile,  "thou  shalt  take  him  from 
mine  altar  that  he  may  die."  In  English  law  there  was 
an  interesting  parallel  to  this  legislation  in  what  was  called 
the  privilege  of  sanctuary,  which  was  closely  connected 
with  that  of  Benefit  of  Clerg>\  Through  Benefit  of 
Clergy  the  criminal  escaped  through  the  fact  or  fiction 
that  he  had  taken  orders  and  was  a  holy  man;  by  the 
privilege  of  sanctuary  he  was  protected  by  his  refuge  in  a 
holy  place.  Felons  who  had  fled  to  a  church  were  al- 
lowed to  leave  it  unmolested  on  taking  oath  to  abjure  the 
realm  within  a  certain  time.  In  other  words,  they  were 
permitted  to  escape  punishment  if  they  went  to  a  for- 
eign country,  taking  with  them  their  criminal  habits, 
and  leaving  behind  them  everything  else  they  possessed. 
The  custom  dated  from  Anglo-Saxon  times,  and  by  a 
statute  of  32  Henry  VIII,  c.  12,  certain  towns  were 
constituted  "places  of  tuition  and  privilege"  in  lieu 
of  expatriation.  There  were  eight  in  all,  in  various  parts 
of  the  kingdom,  including  Westminster,  but  the  privilege 
was  confined   to   the   minor  offenders.     Later  statutes 


upon  English  Law  215 

nominally  abolished  all  privilege  of  sanctuaries,  but  they 
persisted  for  a  long  time,  especially  in  London.  South- 
wark  was  notorious  for  them,  and  all  readers  of  Scott's 
masterly  Fortunes  of  Nigel  will  remember  the  hero's 
adventures  in  Alsatia,  near  the  Temple,  which  derived 
its  pretended  privilege  of  sanctuary  from  the  monastery 
of  White  Friars  which  formerly  stood  there. 

Whether  or  not  tithes  were  due  by  Divine  Right,  was 
a  question  that  was  warmly  debated  between  the  eccle- 
siastical and  the  common  lawyers.  Naturally  those  who 
demanded  tithes  claimed  that  the  well-known  texts  in 
Numbers  and  Deuteronomy  sufficiently  proved  the 
Divine  will;  those  who  had  to  pay  the  tithes  just  as 
naturally  denied  it.  But  it  seems  quite  clear  that  this 
important  right  of  the  Church  was  established  in  direct 
imitation  of  the  Hebrew  law. 

There  are  few  rules  of  our  law  more  famiUar  than  that 
which  requires  a  will  to  be  proved  by  two  witnesses,  and 
this  is  only  one  of  the  many  cases  where  the  so-called 
"two-witness"  rule  applies.  Although  it  is  as  difficult 
to  trace  the  pedigree  of  a  legal  doctrine  as  the  genealogy 
of  a  family,  it  is  reasonably  clear  that  this  one  is  derived 
from  Biblical  authority.  In  Numbers  35:  30  it  is  said: 
"One  witness  shall  not  testify  against  any  person  to 
cause  him  to  die."  In  Deut.  17:  6:  "At  the  mouth  of  two 
witnesses,  or  three  witnesses,  shall  he  that  is  worthy  of 
death  be  put  to  death;  but  at  the  mouth  of  one  witness 
he  shall  not  be  put  to  death."  In  Deut.  19:  15:  "At  the 
mouth  of  two  witnesses,  or  at  the  mouth  of  three  wit- 
nesses, shall  the  matter  be  established."  And  in  St.  John, 
8:  17,  Christ  said:  "It  is  also  written  in  your  law  that  the 
testimony  of  two  men  is  true."  The  same  rule,  "In  the 
mouth  of  two  or  three  witnesses  every  word  may  be 
established,"  is  also  quoted  by  Christ  in  St.  Matthew 
18:  16,  and  by  St.  Paul  in  II  Corinthians    13:  1,    and 


216  The  Influence  of  Biblical  Texts 

I  Timothy  5 :  19.  By  the  time  of  the  Emperor  Constantine, 
the  rule  that  a  single  witness  was  insufficient  in  law 
had  been  adopted  by  the  Roman  law  and  was  further 
developed  by  the  canon  law  of  the  Church.  The  com- 
mon law  of  England  never  adopted  it  as  a  systematic 
rule,  but  as  the  Church  courts  had  jurisdiction  over  wills, 
they  required  two  witnesses  for  probate,  on  the  ground 
that  this  was  agreeable  to  the  law  of  God,  and  this  rule 
has  become  a  part  of  our  law  of  wills. 

The  general  principle  that  two  witnesses  are  necessary 
to  prove  a  legal  fact  was  adopted  also  by  the  Court  of 
Chancery  and  produced  there  very  important  results  in 
equity  practice  and  pleading,  which  affect  our  law  to  this 
day,  although  of  a  nature  too  technical  to  be  interesting, 
and  we  also  owe  to  it  the  rule  that  requires  two  witnesses 
to  convict  a  defendant  of  perjury,  and  the  provision  in 
the  Constitution  of  the  United  States,  Art.  3,  Sec.  3, 
that  "no  person  shall  be  convicted  of  treason  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act  or 
on  confession  in  open  court." 

The  command,  "Whosoever  sheddeth  man's  blood,  by 
man  shall  his  blood  be  shed,"  Genesis  9:  6,  was  prob- 
ably a  fragment  of  the  law  of  retaliation,  or  talion,  stated 
more  fully  in  Exodus  21:  23:  "And  if  any  mischief  fol- 
low, then  thou  shalt  give  life  for  Hfe,  eye  for  eye,  tooth 
for  tooth,  hand  for  hand,  foot  for  foot,  burning  for  burn- 
ing, wound  for  wound,  stripe  for  stripe";  and  in  Leviti- 
cus 24:  18:  "And  he  that  killeth  a  beast  shall  make  it 
good,  beast  for  beast.  And  if  a  man  cause  a  blemish  in 
his  neighbor,  as  he  hath  done  so  shall  it  be  done  to  him." 
It  has  indeed  been  surmised  that  the  law  of  "eye  for 
eye,"  etc.,  was  a  milder  substitute  for  an  older  law  which 
made  death  the  universal  penalty,  for  the  natural  im- 
pulse is  to  kill  the  aggressor  for  any  serious  injury  inflicted 
by  him.  As  Whitmore  says  in  Shakespeare's  Henry  VI, 
Pt.  2,  Act.  IV,  Sc.  1: 


upon  English  Law  217 

"I  lost  mine  eye  in  laying  the  prize  aboard 
And  therefore,  to  revenge  it,  shalt  thou  die." 

At  any  rate,  "eye  for  eye"  is  in  accordance  with  the 
primitive  ideas  of  retributive  justice,  tit  for  tat,  to  make 
the  punishment  fit  the  crime;  but  Christ,  in  his  Sermon 
on  the  Mount,  Matthew  5:  38,  expressed  his  disapproval 
of  the  principle,  and  it  was  perhaps  for  this  reason  never 
adopted  by  the  common  law.  In  fact,  it  never  seems  to 
have  obtained  in  any  of  the  Germanic  systems.  The 
traces  of  it  in  Anglo-Saxon  times,  notably  in  the  laws  of 
King  Alfred,  were  merely  copied  from  Exodus.  In 
cases  of  intentional  homicide,  however,  the  death  penalty 
survives  in  most  civilized  countries  because  it  still  har- 
monizes with  the  general  sense  of  justice,  and  men  still 
turn  back,  as  did  Coke  and  Blackstone,  to  the  texts  in 
the  Old  Testament  which  enjoin  it,  while  they  follow 
the  New  Testament  in  its  abrogation  of  the  general 
application  of  the  rule.  As  Stephen  says,  "A  murderer 
should  be  destroyed  just  as  a  wolf  or  tiger" ;  and  .^schy- 
lus  in  one  of  his  dramas  says: 

"There  is  a  law  that  blood,  once  poured  on  earth 
By  murderous  hands,  demands  that  other  blood 
Be  shed  in  retribution." 

Compare  with  this  the  verse  in  Genesis  4:  10,  "What 
hast  thou  done?  the  voice  of  thy  brother's  blood  trieth 
unto  me  from  the  ground." 

So  as  to  marriage  and  divorce.  The  text  that  makes 
man  and  wife  one  flesh  is  found  in  Genesis  2:  23,  but 
according  to  the  Deuteronomic  code,  Deut.  24:  1, 
divorce  appears  to  have  been  absolutely  at  the  pleasure 
of  the  husband.  He  might,  in  the  quaint  phrase  of  the 
Wyclif  version  of  Matthew  19:7,  give  his  wife  "a  litil 
boke  of  forsakynge  and  leave  off,"  and  this  little  book 


218  The  Influence  of  Biblical  Texts 

was  called  in  the  Hebrew  tongue  by  the  simple  but 
expressive  monosyllable,  "Get."  In  the  Gospel  of 
Matthew,  it  is  said  that  "Moses,  because  of  the  hardness 
of  your  hearts,  suffered  you  to  put  away  your  wives, 
but  from  the  beginning  it  was  not  so."  That  men's 
hearts  continued  too  hard  for  the  full  realization  of 
this  ideal  Christian  theory  of  marriage  is  a  common- 
place of  history,  illustrated  copiously  in  the  ecclesiastical 
law  which  could  so  frequently  discover  sufficient  reasons 
for  holding  marriages  void  ah  initio.  It  is  always  a 
very  easy  matter  to  distinguish  and  refine  upon  texts 
which  do  not  suit  one's  personal  views  upon  the  sub- 
ject, and  rely  triumphantly  upon  others  which  are  more 
agreeable. 

In  like  manner  the  two-witness  rule  probably  derived 
its  real  power  from  the  facts,  however  dimly  recognized, 
that  the  cumulative  force  of  the  testimony  of  two  or 
more  witnesses  increases  almost  in  the  geometrical  ratio 
of  their  number,  and  that  the  second  witness  can  hardly 
tell  so  consistent  a  story  that,  if  either  be  false,  cross- 
examination  will  fail  to  detect  the  falsehood.  The  Apoc- 
ryphal story  of  Susanna  is  a  well  known  illustration. 

Thus,  also,  in  cases  where  the  injunctions  and  penalties 
prescribed  by  the  Hebrew  law  did  not  satisfy  the  con- 
sciences of  our  ancestors,  they  were  frankly  disregarded. 
The  prohibition  of  swine's  flesh  as  food  was  never  taken 
seriously  by  a  nation  devoted  to  breakfast  bacon,  and 
the  punishment  of  death  by  stoning  for  Sabbath  break- 
ing. Numbers  15:  36,  and  disobedience  to  parents,  Deut. 
21:  18,  were  passed  over  as  belonging  to  the  "old  dis- 
pensation." 

So  the  early  law  of  the  Province  of  Pennsylvania 
gave  a  double  portion  to  the  eldest  son,  in  imitation  of 
the  Hebrew  code  in  Deut.  21:  17,  but  this  was  soon 
abandoned  in  favor  of  equality  of  distribution. 


upon  English  Law  219 

But  the  Bible  was  quoted  by  all  the  earUer  law  writers 
and  judges  not  merely  as  authority,  but  also  by  way  of 
illustration  or  analogy.  In  many  cases  it  is  difficult  to 
determine  just  how  much  weight  was  intended  to  be 
attached  to  the  quotations.  It  may  perhaps  be  interest- 
ing to  observe  some  such  instances.  I  have  therefore 
culled  a  few  flowers  from  Lord  Coke's  writings  and  Black- 
stone's  Commentaries,  authors  who  have  probably 
exerted  more  influence  upon  our  law  than  any  others. 

Thus,  in  reference  to  the  segregation  of  lepers  in  Eng- 
land, Coke  cites  the  provisions  of  Leviticus  13:  44,  and 
Numbers  5:  1  as  the  law  of  God  upon  the  subject.  In 
speaking  of  twelve  as  the  number  of  the  jury,  he  observes 
that  this  number  is  much  respected  in  Holy  Writ,  as 
twelve  apostles,  twelve  stones  taken  by  Joshua  from  the 
midst  of  Jordan,  twelve  tribes,  etc.,  and  it  is  interesting 
to  note  that  Coke  himself  had  twelve  children.  On  par- 
tition by  lot,  he  cites  Numbers  26:  55  and  33:  54,  where 
the  Lord  directed  Moses  to  divide  the  land  by  lot.  He 
holds  that  predictions  of  the  end  of  the  world  are  unlaw- 
ful because,  according  to  Acts  1:  7,  "It  is  not  for  you  to 
know  the  times  or  the  seasons."  He  illustrates  the 
offense  of  bribery  by  the  text,  "A  gift  doth  blind  the  eyes 
of  the  wise  and  pervert  the  words  of  the  righteous," 
Deut.  16:  19.  On  duelling,  he  refers  to  the  words  of 
Christ  in  Matthew  26:  52,  "Put  up  again  thy  sword  into 
his  place,  for  all  they  that  take  the  sword  shall  perish 
with  the  sword,"  and  the  text,  Deut.  32:  35,  "To  me  be- 
longeth  vengeance  and  recompense."  He  holds  the 
modern  doctrine  of  international  law  that  political 
refugees  should  not  be  delivered  up,  and  says  that  this 
is  grounded  by  some  on  the  law  in  Deut.  23:  15,  "Thou 
shalt  not  deliver  unto  his  master  the  servant  which  is 
escaped  from  his  master  unto  thee."  In  his  chapter  on 
Buildings,  in  3  Inst.,  he  quotes  with  approval  the  direction 


220  The  Influence  of  Biblical  Texts 

in  Deut.  22:  8,  "When  thou  buildest  a  new  house, 
then  thou  shalt  make  a  battlement  for  thy  roof,  that 
thou  bring  not  blood  upon  thine  house  if  any  man  fall 
from  thence,"  which  probably  had  a  deeper  meaning  than 
Lord  Coke  supposed.  He  illustrates  the  law  forbidding 
a  subject  of  the  King  of  England  to  receive  a  pension 
from  a  foreign  king  by  the  text  from  Matthew,  6:  24, 
"No  man  can  serve  two  masters."  Duelling  he  con- 
demns because  God  said,  "Vengeance  is  mine,  I  will 
repay."  "No  man,"  says  Coke,  "ought  to  be  con- 
demned without  answer,"  that  is,  the  opportunity  to 
defend  himself.  He  calls  this  the  Divine  law,  and  refers 
to  the  saying  of  Festus  in  Acts  25:  16,  "It  is  not  the 
manner  of  the  Romans  to  deliver  any  man  to  die  before 
that  he  which  is  accused  have  the  accusers  face  to  face 
and  have  license  to  answer  for  himself  concerning  the 
crime  laid  against  him,"  and  the  saying  of  Nicodemus, 
St.  John  7:  51,  "Doth  our  law  judge  any  man  before  it 
hear  him,  and  know  what  he  doeth?"  In  mentioning 
the  relief  from  jury  service  of  men  over  70  years  of  age, 
under  the  Statute  of  West.  II  c.  38,  he  repeats,  "The 
days  of  our  years  are  three  score  years  and  ten,"  Psalms 
90:  10.  The  circuits  of  the  judges  he  derives  from 
I  Samuel  7:  16,  where  Samuel  "went  from  year  to  year 
in  circuit  to  Beth-el  and  Gilgal  and  Mizpeh,  and  judged 
Israel  in  all  those  places."  Chapter  25  of  Magna  Charta 
concerns  weights  and  measures;  and  Coke  says  this  is 
founded  on  the  law  of  God,  citing  Deut.  25:  13,  "Thou 
shalt  not  have  in  thy  bag  divers  weights,  a  great  and  a 
small." 

The  Statute  of  Westminster,  I  c.  34,  against  slander 
of  the  king  or  the  great  men  of  the  realm,  is  said  to  be 
in  accordance  with  the  law  of  God,  Exodus  22:  28,  "Thou 
shalt  not  revile  the  gods  nor  curse  the  ruler  of  thy  people," 
and    Jude    8,    "These    filthy   dreamers    speak    evil    of 


upon  English  Law  221 

dignities."  And  Lord  Coke,  in  his  admiration  for 
Moses,  frequently  alludes  to  him  as  a  judge,  and  the 
first  writer  of  law. 

These  examples  from  Lord  Coke  might  be  multiplied 
indefinitely,  so  we  shall  pass  to  Blackstone,  who,  writing 
over  a  century  later,  uses  Scripture  texts  in  much  the 
same  way,  although  not  to  the  same  extent.  He  founds 
the  right  of  property  upon  God's  gift  to  Adam,  Genesis 
1 :  28,  of  dominion  over  the  earth  and  every  living  thing, 
that  moveth  upon  it  (II  2);  and  refers  (II  6)  to  Isaac's 
reclamation  of  the  wells  which  Abraham  had  digged, 
Genesis  26:  15,  and  to  the  partition  made  between  Lot 
and  Abraham. 

He  illustrates  the  English  law  of  inheritance  by  show- 
ing that  males  were  preferred  to  females  by  the  Jewish 
law  in  Numbers  27,  the  case  decided  by  Moses,  of  the 
daughters  of  Zelophehad.  In  treating  of  the  use  of  seals 
in  conveyances  by  deed,  he  cites  (II  305)  the  purchase  by 
Jeremiah  of  the  field  of  Anathoth  from  his  nephew,  where 
the  evidence  of  the  sale  was  signed  and  sealed.  Livery 
of  seisin  he  illustrates  (II  313)  from  the  story  of  Ruth, 
4:  7,  "Now  this  was  the  custom  in  former  time  in  Israel 
concerning  redeeming  and  concerning  changing,  for  to 
confirm  all  things  a  man  plucked  off  his  shoe  and  gave 
it  to  his  neighbour."  He  refers  (II  446)  to  the  sale  of 
Machpelah  to  Abraham  for  400  shekels  of  silver,  current 
money  with  the  merchants.  Genesis  23:  16,  and  illus- 
trates the  antiquity  of  wills  by  Jacob's  bequest  to  Joseph 
in  Genesis  48:  22. 

In  bringing  to  a  close  these  superficial  and  desultory 
remarks  upon  certain  influences  of  Biblical  texts  upon 
the  law,  it  is  right  to  add  that  no  one  should  receive  an 
erroneous  impression  from  the  harmful  use  of  the  Bible 
which  many  of  the  examples  might  without  this  caution 
seem  to  indicate.     In  law,  as  in  religion,  the  letter  killeth, 


222  The  Influence  of  Biblical  Texts 

but  the  spirit  giveth  life.  Biblical  texts,  dragged  from 
their  context  and  applied  without  any  consideration  of 
the  times  in  which  they  were  written,  the  circumstances 
in  which  they  were  employed,  or  the  purposes  for  which 
they  were  intended,  have  certainly  done  an  immense 
amount  of  harm  in  law  as  elsewhere,  if  regarded  in  the 
spirit  of  Browning's  Spanish  Cloister: 

"There's  a  great  text  in  Galatians, 
Once  you  trip  on  it,  entails 
Twenty-nine  distinct  damnations, 
One  sure,  if  another  fails." 

Or  as  a  means  of  divination  by  the  sortes  sanctorum, 
where  the  Bible  was  opened  at  hazard,  and  the  first 
verse  of  the  opened  page  was  taken  as  the  oracle.  But 
no  one  should  overlook  what  many  writers  have  so  often 
shown  in  words  far  better  than  any  of  mine,  the  benign 
and  ameliorating  influence  of  so  much  in  the  Old  Testa- 
ment and  so  much  more  in  the  New.  Our  attention 
this  afternoon  has  been  directed  only  to  the  consideration 
of  one  of  the  elements  which  has  entered,  in  a  curious 
way,  into  the  growth  of  our  complex  system  of  juris- 
prudence. 

A  word  more.  The  Bible  as  a  law  book  has  not 
received  the  careful  study  to  which  it  is  entitled.  Its 
theological  importance,  and,  in  later  times  especially,  its 
literary  interest  have  absorbed  the  attention  of  its 
readers,  but  there  are  other  aspects  from  which  it  should 
be  studied.  I  have  confined  myself  to  a  small  part  of 
its  influence  in  specific  cases  upon  the  development  of 
our  own  law;  but  the  student  of  comparative  law  can 
find  in  this  most  accessible  place  a  rich  store  of  material, 
comparable  only  with  those  systems  upon  which  Sir 
Henry  Maine  has  thrown  so  much  Hght.  Thus  Judge 
Sulzberger  has  written  upon  the  Hebrew   ParUament, 


upon  English  Law  223 

and  Mr.  David  W.  Amram,  in  a  series  of  articles  in  the 
Green  Bag,  and  in  his  book,  Leading  Cases  in  the  Bible, 
has  shown  how  the  Hebrew  legal  system  was  developed 
from  the  patriarchal  type,  and  founded  upon  the  family 
as  the  social  unit,  which,  like  a  corporation,  survived  the 
death  of  its  head.  We  find  among  the  ancient  Hebrews 
the  blood  feud,  the  liability  of  the  head  of  the  family  for 
the  crimes  of  his  children,  the  correlative  power  which 
the  family  head  had  over  the  children  even  to  deprive 
them  of  life  and  hberty;  these  archaic  ideas,  and  the 
corresponding  status  of  women,  the  custom  of  polygamy, 
the  rights  and  obligations  of  inheritance  which  are 
described  in  the  Old  Testament  have  their  counterparts  in 
the  ancient  laws  of  the  Romans,  the  ancient  Aryans  and 
our  own  ancestors. 

The  study  of  our  law,  especially  by  the  historical 
method,  should  indeed  be  reckoned  a  part  of  a  liberal 
education,  and  as  such  it  is  consistent  with  the  purposes 
of  our  society.  If  it  teaches  nothing  more,  it  teaches  this: 
that  imperfect  as  all  our  human  institutions  are,  a  com- 
parison with  the  past  shows  how  great  has  been  their 
improvement.  Every  one  should  know  something  of  our 
law,  not  with  the  minute  study  which  the  practising 
lawyer  is  obliged  to  give  it,  but  enough  to  enable  him  to 
appreciate  what  law  is,  what  are  its  elementary  prin- 
ciples, and  how  it  came  to  be  what  it  is  through  its  long 
centuries  of  development;  for  our  law  is  the  protector 
of  society,  the  safeguard  of  our  rights,  and  the  rule  of 
our  daily  life.  As  one  last  quotation  from  the  Book,  it 
is  said  in  Joshua  8: 35,  "There  was  not  a  word  of  all  that 
Moses  commanded,  which  Joshua  read  not  before  all  the 
congregation  of  Israel,  with  the  women  and  the  little 
ones,  and  the  strangers  that  were  conversant  among 
them."  And  in  WiUiam  Penn's  Great  Law  of  the  Prov- 
ince of  Pennsylvania,  passed  at  Upland,  on  December  7, 


224  The  Influence  of  Biblical  Texts 

1682,  it  was  provided  that  the  laws  of  the  Province 
"should  be  printed  and  taught  in  the  schools." 

Bentham  at  a  later  date  likewise  suggested  that  what 
was  good  in  the  common  law  should  be  enacted  as  a  statute 
and  read  in  the  churches  and  used  for  school  exercises. 
So  far,  however,  the  law  has  not  supplanted  the  Gospel 
in  the  churches  and  has  not  been  popular  in  the  schools 
or  colleges. 

It  is  not  a  dull,  dry  study.  It  concerns,  as  I  said,  and 
greatly  enlivens  every  phase  of  history,  politics,  econom- 
ics, philosophy  and  literature,  and  the  student  can  be 
assured  in  Milton's  words,  that  in  this  study,  "There  be 
dehghts,  there  be  recreations  and  jolly  pastimes  that 
will  fetch  the  day  about  from  sun  to  sun,  and  rock  the 
tedious  year  as  in  a  dehghtful  dream." 


VII 

The   Historical  Method  of  the   Study  of 
the  LaWy  illustrated  by  the  Master  s 
Liability  for  his  Servant's  Tort 


The  Historical  Method  of  the  Study  of 

the  Law,  illustrated  by  the  Master's 

Liability  for  his  Servant's  Tort' 

I  propose  to  talk  to  you  this  evening  upon  "Tiie 
Historical  Method  of  the  Study  of  the  Law."  We  all 
know  that  it  is  not  enough  to  study  the  statute  books 
and  the  decisions  of  the  Courts.  These  must  be  the 
basis  of  our  legal  education,  of  course,  but  the  know- 
ledge of  them  alone  is  not  enough  to  make  us  lawyers, 
though  it  may  afford  the  equipment  of  a  successful 
practitioner.  We  should  learn  what  the  law  is,  but,  un- 
less we  learn  more  than  that,  we  shall  not  know  of  the 
law  more  than  of  the  wind,  whence  it  cometh  or  whither 
it  goeth. 

To  study  law  as  a  science  we  must  inquire :  How  did 
the  law  come  to  be  what  it  is?  and  this  inquiry  will  lead 
to  a  second :  Why  should  the  law  be  what  it  is,  or  What 
political  or  ethical  justification  is  there  for  it? 

Philosophical  writers  upon  the  law,  such  as  Austin, 
Holland  and  others,  occupy  themselves,  for  the  most  part, 
with  the  scientific  analysis  of  legal  ideas,  and  aim  to 
develop  a  general  system  of  jurisprudence.  Others,  like 
Bentham,  endeavor,  by  criticism  of  the  law  as  they  find  it, 
to  reform  it  in  accordance  with  their  theory  of  ethics. 
Without  underrating  the  importance  of  such  studies,  it 
would  seem  clear  that  no  correct  appreciation  of  them  can 
be  gained  by  any  one  of  them  who  has  not  traced  the  his- 
tory  of   the   law,  and   observed    its  development,  and, 

1  Delivered  to  the  students  of  the  Philadelphia  Law  School  of  the 
Temple  College  on  February  25,  1902. 


228  The  Historical  Method 

therefore,  the  historical  method  of  study  is  not  only  of 
fundamental  importance,  but  is  especially  appropriate  for 
the  student.  He  will  find  that  the  law  grew  by  a  process 
of  evolution,  in  accordance  with  the  necessities  of  the 
people,  and  is  founded  upon  their  customs  and  social  con- 
ditions. He  will  find  that  his  investigations  lead  inevit- 
ably to  the  discovery  and  analysis  of  primitive  and 
changing  conceptions  of  politics  and  morals.  He  will  find 
that,  in  many  instances,  the  law  was  founded  upon  a  reli- 
gious basis.  Thus,  in  the  early  history  of  many  nations, 
the  lawgivers  were  the  priests.  The  Hebrew  law  is  found 
in  the  Pentateuch.  Until  comparatively  modern  times, 
the  English  Chancellor,  the  keeper  of  the  king's  con- 
science, was  an  ecclesiastic.  Still  more  recently,  the 
Puritans  of  Massachusetts  Bay  established  a  virtual 
theocracy;  and,  at  the  present  time,  with  the  followers 
of  Mohammed,  Law  and  Religion  are  one. 

And,  in  tracing  the  development  of  legal  principles,  the 
student  will  find  instances  where  their  origin  cannot  be 
definitely  ascertained.  In  many  cases  legal  rules  will  be 
found  to  rest  upon  mistaken  premises  or  false  reasoning. 
In  many  cases  the  task  will  be  found  impossible,  and  we 
must  content  ourselves  with  surmises  and  probabilities. 
To  speak  metaphorically,  the  stream  cannot  be  traced 
to  a  distinct  source,  but  will  be  found  to  rise  from  many 
widely  separated  springs,  so  that  it  is  impossible  to  say 
which  one  is  the  true  fons  et  origo. 

But,  in  every  case,  the  student  will  derive  both  pleasure 
and  advantage  from  his  investigations.  He  may  not 
succeed  in  finding  the  primary  object  of  his  search,  but 
he  will  be  led  imperceptibly  into  many  side  tracks,  paths 
leading  nowhere  in  particular,  and  yet  enabling  him  to 
get  a  good  general  view  of  the  whole  province  which  he  is 
exploring,  and  perhaps  afifording  many  interesting  and 
valuable  discoveries  by  the  way. 


Of  the  Study  of  the  Law  229 

Just  here  let  me  say  that  Blackstone's  Commentaries 
are,  for  this  reason,  the  best  elementary  book  ever  written 
for  the  student.  They  are  concise,  stimulating,  written 
in  a  most  delightful,  and,  indeed,  inimitable  style,  and, 
notwithstanding  that  later  scholarship  has  discovered 
many  historical  inaccuracies,  and  discarded  much  of  his 
reasoning,  yet,  upon  the  whole,  the  Commentaries  are  a 
legal  classic,  and  should  be  carefully  read  by  every  student 
even  if  it  is  the  fashion  nowadays  to  disregard  them  as 
out  of  date. 

I  would  further  commend  to  you  the  works  of  Sir 
Henry  Maine,  especially  his  Ancient  Law.  Published  in 
1861,  nearly  fifty  years  ago,  this  book  gave  to  the  rational 
investigation  of  the  law  an  interest  which  is  fresh  at  the 
present  day,  and,  I  believe,  will  never  become  stale,  flat 
or  unprofitable,  even  though  his  work,  also,  has  been 
supplemented,  and,  in  part,  corrected  by  more  recent 
writers. 

And,  some  years  ago,  Mr.  Bryce,  the  author  of  The 
American  Commonwealth,  published  a  most  interesting 
volume  of  Studies  in  History  and  Jurisprudence,  in- 
cluding a  very  valuable  essay  on  the  "Methods  of 
Legal  Science." 

Without  dwelling  further  upon  this  general  subject, 
I  propose,  in  the  time  allotted  me,  to  illustrate,  by  a 
practical  example,  the  historical  method  of  the  study  of 
the  law,  and  to  show,  if  I  can,  its  interest  and  useful- 
ness. I  shall  not  attempt  to  give  you  anything  which 
you  could  not  find  out  for  yourselves.  My  object  is 
merely  to  stimulate  in  you  a  desire  for  personal  research 
and  investigation. 

The  example  I  have  selected  is  taken  from  the  law  of 
Master  and  Servant,  and  is  expressed  in  the  rule  that 
the  master  is  liable  for  the  injury  caused  by  his  servant's 
torts,  committed  within  the  scope  of  his  employment. 


230  The  Historical  Method 

A  most  familiar  rule,  for  our  reports  are  crowded  with 
cases  wherein  it  has  been  applied  in  actions  of  negli- 
gence, and  yet  it  is  subject  to  many  exceptions,  its 
origin  is  obscure,  and  the  reasons  given  for  its  justifica- 
tion are  various  and  conflicting. 

Before  proceeding  to  the  general  investigation  of  the 
subject  I  would,  by  way  of  illustration,  refer  to  some 
cases  decided  in  our  own  Courts  and  taken  almost  at 
random. 

The  first  is  the  Philadelphia,  Wilmington  &'  Baltimore 
R.  R.  V.  Brannen,  17  W.  N.  C,  227.  The  engineer  of 
a  railroad  train,  running  his  engine  along  a  street  in 
Philadelphia,  blew  the  whistle  and  frightened  a  horse. 
After  the  horse  had  quieted  down,  the  engineer  blew  two 
more  blasts  on  the  whistle,  which  so  frightened  the  horse 
that  it  ran  away  and  knocked  down  the  plaintiff,  who 
sustained  serious  injuries.  The  rules  of  the  company 
forbade  the  sounding  of  the  whistle  except  to  prevent 
accident.  Although  the  act  of  the  engineer  was  regarded 
as  a  clear  violation  of  his  orders,  yet  the  Supreme  Court 
held  the  railroad  company  liable,  giving  as  a  reason  that 
the  act  of  the  engineer  was  within  the  general  scope 
of  his  employment,  and  that,  while  the  public  can  see 
and  know  the  general  scope  of  employment  of  the  ser- 
vant, they  have  no  means  of  knowing  the  secret  orders 
given  to  him. 

Another  case  is  McClung  v.  Dearborne,  134  Pa.,  396. 
The  plaintiff  had  purchased  an  organ  on  the  "installment 
plan,"  and  failed  to  make  his  payments  according  to  the 
contract,  so  that  the  title  to  the  organ  remained  in  the 
defendant.  In  order  to  recover  his  property,  the  defend- 
ant sent  two  men  to  the  plaintiff's  house,  expressly 
instructing  them  to  use  no  violence.  The  defendant's 
employes  obtained  access  to  the  house  by  a  trick,  for- 
cibly removed   the  organ,   and,   in  the  course  of   the 


Of  the  Study  of  the  Law  231 

scuffle,  assaulted  the  plaintiff's  wife  and  son.  The  trial 
Court  held  that  this  was  a  wilful  trespass,  for  which  the 
employer  was  not  liable,  but  the  Supreme  Court  reversed, 
because  the  defendant  had  sent  his  employes  on  an 
errand  that  he  knew  was  likely  to  result  in  trouble,  and 
he  took  the  chances  of  his  employes  being  able,  under 
excitement,  to  retain  their  self-control  and  follow  his 
instructions. 

I  suppose  every  one  would  agree  that,  if  a  tort  is 
committed  in  accordance  with  an  express  command, 
the  person  who  gave  the  order  should  be  responsible.  If 
an  early  authority  is  asked  for,  you  will  find  an  old  case, 
22  Ed.  Ill,  about  1349,  in  2  Rolle  Abr.  555.  Trans- 
lated from  the  old  law  French  it  reads,  "If  a  man  com- 
mands another  to  assault  me,  and  he  does  it  accordingly, 
he  is  a  trespasser,  just  as  though  he  had  done  it  him- 
self." This,  as  I  say,  would  seem  clear,  but,  at  first 
blush,  it  would  seem  illogical  that  a  man  should  be  held 
responsible  for  the  torts  of  another  not  committed  by 
his  command,  or  even,  as  we  have  just  seen,  in  direct 
violation  of  his  orders:  or  that  an  employer,  who  has 
exercised  every  reasonable  precaution  in  the  selection  of 
his  servant,  should  have  to  answer  for  his  servant's  care- 
lessness or  negligence.  Such,  however,  is  the  rule  of 
law  which,  as  Judge  Sharswood  observed  in  Hays  v. 
Millar,  77  Pa.,  238,  "is  often  attended  with  much  seem- 
ing hardship,"  and  "is  apt  to  strike  the  common  mind  as 
unjust." 

It  is  safe  to  say  that  a  rule  of  law  which  has  been 
maintained  so  long  and  so  persistently  as  this  must 
have  some  solid  historical  basis,  and  it  is  equally  safe  to 
afifirm  that  its  seeming  injustice  must  be  counterbalanced 
by  weighty  considerations  of  public  policy.  "Every 
important  principle  which  is  developed  by  litigation," 
says  Judge  Holmes  in  The  Common  Law,  page  35,  "is. 


232  The  Historical  Method 

in  fact  and  at  bottom,  the  result  of  more  or  less  definitely 
understood  views  of  public  policy,  most  generally,  it  is 
true,  under  our  practice  and  traditions,  the  unconscious 
result  of  instinctive  preferences  and  inarticulate  convic- 
tions, but  none  the  less  traceable  to  views  of  public 
policy  in  the  last  analysis." 

Let  us  then  first  examine  the  historical  origin  of  the 
rule,  and  then  consider  the  arguments  of  public  policy 
which  sustain  it. 

We  are  so  accustomed  to  regard  the  individual,  and 
the  individual  alone,  as  responsible  for  his  own  acts, 
that  every  form  of  vicarious  responsibility  may  readily 
seem,  to  our  modern  view,  absurd,  or,  at  least,  unjust. 
Even  children  are  liable  for  their  torts.  You  will  find 
a  case  in  Pennsylvania,  McGee  v.  Willing,  31  Leg.  Int. 
37,  where  a  child  of  six  years  was  held  civilly  liable  for 
striking  his  nurse  in  the  eye  with  a  tack  hammer ;  whilst 
on  the  other  hand,  a  parent  is  not  responsible  for  his 
child's  tortious  act,  unless  he  expressly  authorized  or 
commanded  it. 

But,  in  order  to  estimate  fairly  this  principle  of 
vicarious  liability,  we  must  lay  aside  our  pre-judgment, 
and  take  ourselves,  in  imagination,  far  back  in  time; 
not,  perhaps,  to  the  period  when  our  long-armed  and 
hairy  ancestors  had  no  idea  of  redress  beyond  vengeance, 
or  of  justice  beyond  mere  individual  reprisal,  but  to  the 
times  of  which  we  have  reliable  written  records.  We 
find  that  the  civilization  and  the  laws  of  the  ancients 
were  founded  upon  the  family  as  the  unit  of  society, 
and  the  rights  and  liabilities  of  the  individual  were,  gen- 
erally speaking,  considered  as  belonging  to  the  family  of 
which  he  was  a  member.  Let  us  take  some  examples 
from  a  Book  supposed  to  be  familiar  to  all.  There  we 
find  that  the  sins  of  the  fathers  are,  according  to  the 
Second  Commandment  of  the  Decalogue,  visited  upon 


Of  the  Study  of  the  Law  233 

the  children  unto  the  third  and  fourth  generations.  In 
Esther  10:  13,  14,  not  only  Haman,  but  his  ten  sons  were 
hanged.  Not  only  Korah,  but,  according  to  a  fair  read- 
ing of  the  text,  his  family  were  swallowed  up.  Not  only 
Naboth,  but  his  sons  also  were  included  in  the  death 
sentence  after  Naboth  had  been  convicted  of  treason. 
Ahab's  sins  were  visited  not  on  him,  but  on  his  children. 
"And  the  word  of  the  Lord  came  to  Elijah  the  Tishbite, 
saying,  Seest  thou  how  Ahab  humbleth  himself  before 
me?  Because  he  humbleth  himself  before  me  I  will  not 
bring  the  evil  in  his  days,  but  in  his  sons'  days  will  I 
bring  the  evil  upon  his  house"  (1  Kings  21:  28,  29.). 
Here  the  actual  offender,  by  repentance,  saved  himself, 
but  the  crime  was  unexpiated,  and  its  punishment  was 
inflicted  on  his  descendants.  In  the  Book  of  Deuter- 
onomy, 24:  16,  it  is  written,  "The  fathers  shall  not  be 
put  to  death  for  the  children,  neither  shall  the  children 
be  put  to  death  for  the  fathers;  every  man  shall  be  put 
to  death  for  his  own  sin,"  which  clearly  implies  that  the 
law  had  been  otherwise,  and  now  was  changed.  Or,  as 
the  prophet  Jeremiah  expressed  the  same  idea  in  morals 
by  his  poetical,  semi-humorous  figure  in  31 :  29,  30, 
"They  shall  say  no  more,  the  fathers  have  eaten  a 
sour  grape,  and  the  children's  teeth  are  set  on  edge. 
But  every  one  shall  die  for  his  own  iniquity;  every  man 
that  eateth  the  sour  grape,  his  teeth  shall  be  set  on 
edge." 

This  primitive  theory  of  liability  is  not  confined  to 
the  Hebrew  law.  It  seems  to  be  general.  Thus,  Henry 
C.  Lea,  in  his  essay  on  the  Wager  of  Law  {Superstition 
and  Force,  chapter  1),  says,  "In  early  times,  therefore, 
the  wrong  doer  owed  no  satisfaction  to  the  law  or  to  the 
State,  but  only  to  the  injured  party.  That  injured 
party,  moreover,  was  not  a  mere  individual.  All  the 
races   of   the   great    Aryan   branch,  of   mankind   have 


234  The  Historical  Method 

developed  through  a  common  plan  of  organization,  in 
which  each  family  was  a  unit,  with  respect  to  similar 
aggregations  in  the  tribe  or  nation.  .  .  .  Within 
these  units,  as  a  general  rule,  each  individual  was  per- 
sonally answerable  for  all,  and  all  were  answerable  for 
each."  And  he  sums  up  significantly,  "This  solidarity 
of  the  kindred  is  the  key  to  much  that  would  otherwise 
appear  irrational  in  their  legislation,  and  left,  as  we  have 
seen,  its  traces  late  in  the  customary  law." 

You  will  find  the  same  thought  in  Spencer's  Sociology, 
chapter  ix  of  Part  III,  on  The  Family. 

Doubtless  many  special  proofs  might  be  collected  of 
the  truth  of  this  generalization.  Indeed,  some  interest- 
ing examples  go  further.  Thus,  in  Vol.  X  of  the  Selden 
Society's  publications,  we  find  cases  where  injured  parties 
sought  redress,  not  from  the  person  actually  offending, 
but  against  some  other  person  or  persons,  who  were 
merely  inhabitants  of  the  same  town,  and  had  accidentally 
come  within  reach.  For  example,  in  case  34,  A.D.  1398, 
some  citizens  of  Bristol  seized  a  ship  from  Waterford,  in 
revenge  or  reprisal  for  some  wine  taken  from  a  Bristol 
ship  by  citizens  of  Waterford. 

Upon  instances  such  as  this,  I  will  not  dwell  longer, 
but  merely  call  your  attention  to  a  striking  illustration 
of  vicarious  liability  in  English  law,  which  survived  until 
a  comparatively  recent  period. 

By  the  common  law,  a  criminal,  upon  sentence  of 
death  or  judgment  of  outlawry,  became  attaint,  that 
is,  stained  or  blackened,  and  one  of  the  consequences 
of  attainder  was  expressed  in  that  terribly  realistic 
phrase,  "corruption  of  blood."  The  attainted  person 
could  neither  inherit  nor  transmit  to  his  heirs. 

Thus  you  will  recall  the  familiar  scene  in  King  Henry 
VI,  Part  I,  Act  II,  Scene  4,  where  Somerset  and  Plan- 
tagenet  meet  in  the  Temple  Garden.     Plantagenet  picks 


Of  the  Study  of  the  Law  235 

the  white  rose,  and  Somerset  the  red,  which  incident  is  the 
traditional  origin  of  the  name  given  to  the  Wars  of  the 
Roses.  And,  as  they  continue  their  quarrel,  Somerset 
taunts  Plantagenet  by  calling  him  "yeoman": 

"Was  not  thy  father,  Richard,  Earl  of  Cambridge, 
For  treasons  executed  in  our  late  king's  days? 
And  by  his  treason  stands't  thou  not  attainted, 
Corrupted  and  exempt  from  ancient  gentry? 
His  trespass  yet  lives  guilty  in  thy  blood. 
And  till  thou  be  restored  thou  art  a  yeoman. 


Plantagenet : 

My  father  was  attached,  not  attainted. 
Condemned  to  die  for  treason,  but  no  traitor. 
And  that  I'll  prove  on  better  men  than  Somerset 
Were  growing  time  once  ripened  to  my  will." 


In  the  next  Act,  Scene  1,  King  Henry  says: 

"Therefore  my  loving  lords,  our  pleasure  is 
That  Richard  be  restored  to  his  blood  .  .  . 
If  Richard  will  be  true,  not  that  alone. 
But  all  the  whole  inheritance  I  give 
That  doth  belong  unto  the  House  of  York, 
From  whence  you  spring  by  lineal  descent 
Rise,  Richard,  like  a  true  Plantagenet 
And  rise  created  princely  Duke  of  York." 


The  conclusion  to  be  drawn  is,  that  the  idea  of  vicarious 
liability  is  not  necessarily  w^znatural;  on  the  contrary, 
that,  in  the  history  of  early  family  law,  it  must  have 
seemed  both  natural  and  reasonable.  As  Sir  Henry 
Maine  says,  "The  unit  of  an  ancient  society  was  the 
family,  and,  of  a  modern  society,  the  individual." 

We  are  now  prepared  to  examine  the  explanations 
advanced  for  the  origin  of  the  rule  in  English  law.  Judge 


236  The  Historical  Method 

Holmes,  in  his  brilliant  treatise  on  the  Common  Law, 
traces  it  back  to  the  Roman  law  of  noxce  deditio,  the 
surrender  of  the  hurtful  thing,  animal  or  slave.  By  this 
rule  the  animal,  child  or  slave  who  did  the  damage  was 
to  be  surrendered  by  the  owner  or  parent  to  the  injured 
person,  or  else  the  damage  paid  for.  Judge  Holmes  is 
of  the  opinion  that  the  option  of  surrender  was  not  intro- 
duced by  way  of  limitation  of  a  liability,  which  was, 
in  the  first  instance,  general,  but  that  payment  was 
introduced  by  way  of  a  privilege,  as  the  alternative  of  a 
failure  to  surrender,  and  this,  he  asserts,  was  the  law  of 
Greece  as  well.  In  other  words,  the  liability  of  the 
owner  was  merely  a  way  of  getting  at  the  slave  or  animal 
which  was  the  immediate  cause  of  offense,  and  therefore 
primarily  liable. 

I  shall  not  attempt  to  discuss  the  Roman  law  upon  this 
point,  for  I  am  no  civilian,  and  can  only  claim,  with 
Robert  Louis  Stevenson,  to  know  that  emphyteusis  is 
not  a  disease  nor  stillicide  a  crime.  Whether  the  law 
of  Greece  sustains  Judge  Holmes'  view,  is,  perhaps,  also 
a  question.  The  passage  from  Plato  which  he  cites 
may  or  may  not  sustain  his  view,  and  it  may  interest 
you  to  hear  it.  I  quote  from  Jowett's  translation  of  the 
laws,  chapter  xi,  936,  "If  a  slave  .  .  .  injure  any- 
thing .  .  .  the  master  of  the  slave  who  has  done  the 
harm  shall  either  make  full  satisfaction,  or  give  up  the 
slave  who  has  done  the  injury.  .  .  .  And,  if  a  beast  of 
burden,  or  horse  or  dog,  or  any  other  animal,  injure  the 
property  of  a  neighbor,  the  owner  shall,  in  like  manner, 
pay  for  the  injury." 

Holmes  then  traces  the  order  of  development  in  the 
Germanic  tribes,  and  finds  it,  in  his  opinion,  entirely 
similar  to  that  of  the  Roman  law.  Passing  to  England, 
he  says,  "The  principle  introduced  on  special  grounds 
in  a  special  case,  when  servants  were  slaves,  is  now  the 


Of  the  Study  of  the  Law  237 

general  law  of  this  country  and  England,  and,  under 
it,  men  daily  have  to  pay  large  sums  for  other  people's 
acts  in  which  they  had  no  part  or  share,  and  for  which 
they  are  in  no  sense  to  blame."  But  Judge  Holmes 
admits  that  he  cannot  find,  until  a  comparatively  late 
period  in  England,  the  unlimited  liability  of  master  for 
serv^ant,  though  he  is  of  the  opinion,  maintained  with  a 
wealth  of  illustration  and  suggestive  analogy,  that  it 
was  established  through  the  influence  of  the  Roman  law. 

The  theory  which  would  provide  the  rule  with  a  direct 
Roman  ancestry,  and  trace  its  descent  to  modern  times 
through  the  villeinage  of  ancient  English  law,  is  certainly 
attractive.  But  a  careful  examination  of  the  English 
cases  and  abridgements  fails  to  disclose  sufficient  his- 
torical evidence  of  it.  Surely,  if  Holmes  were  correct, 
some  cases  could  be  found  of  a  lord  held  liable  for  the 
acts  of  his  villein;  but,  so  far  as  I  can  find,  none  exists  — 
and  his  theory  is  disapproved  by  Pollock  &  Maitland 
in  their  monumental  History  of  English  Law,  H,  528, 
who  assert  that  a  more  hopeful  line  of  tradition  may  lie 
within  the  responsibility  of  a  householder  for  the  mem- 
bers of  his  household,  to  which  we  shall  presently  refer. 

Mr.  Wigmore,  in  his  learned  examination  of  the  sub- 
ject in  7  Harvard  Law  Review,  330,  writing  after 
Holmes,  arrives  at  the  opposite  conclusion,  so  far,  at 
least,  as  the  Germanic  and  early  English  systems  are 
concerned.  He  shows  that,  according  to  Germanic  law, 
the  housemaster  was  responsible  to  third  persons  for 
those  attached  to  his  house.  This  responsibility  was 
absolute  to  render  full  satisfaction,  and,  in  course  of 
time,  the  Wer  gild,  or  compensation  money,  was  con- 
sidered expiated,  or  paid,  by  the  surrender  of  the  slave. 

In  England  a  similar  liability  appears  at  an  early  date 
to  be  due  from  a  householder,  with  respect  to  all  who  were 
members  of  his  mainpast.     This  word  (in  Latin,  manu 


238  The  Historical  Method 

pastus,  hand  fed)  was  equivalent  to  household  in  the 
broad  sense,  and  included  all  who  were  hand  fed  by  the 
master  of  the  house.  In  the  fourth  volume  of  the  Selden 
Society's  publications  appear  some  interesting  precedents, 
or  rather,  forms.  This  book  is  a  translation  of  a  form  book 
compiled  in  the  thirteenth  century,  so  that  the  cases  are 
not  necessarily  actual  cases  (though  they  may  be),  but 
typical  examples,  and,  for  our  purposes,  quite  as  valuable. 

I  will  read  a  case  on  page  36:  "Sir  Steward,  the  Bailiff, 
Robert  by  name,  who  is  here,  complaineth  of  William 
of  the  street,  who  is  there,  that  against  the  peace  of  the 
lord,  he  sent  Thomas,  his  son,  on  such  a  day,  at  such 
an  hour,  in  the  year  that  now  is,  over  the  wall  newly  built 
and  erected,  and  commanded  him  to  carry  off  of  every 
manner  of  fruit  at  his  will,  and  when  the  bailiff  heard 
the  fruit  being  knocked  down,  he  marvelled  who  this 
could  be,  and  at  once  entered  the  lord's  garden,  and 
found  the  boy  right  high  on  a  costard  tree,  which  he  had 
cultivated  for  the  lord's  use,  because  of  its  goodness; 
he  made  him  come  down,  and  attached  him  without 
doing  any  villany,  and  debonairely  asked  him  by  whose 
commandment  and  whose  sending  he  entered  the  lord's 
garden  over  walls  well  closed  on  all  sides,  and  the  boy 
answered  and  said,  that  William,  his  father,  who  is 
present  there,  bade  him  enter  the  garden,  and  urged 
him  on  to  the  tree  with  the  best  fruit."  William  denies 
that  his  son  committed  the  trespass  by  his  command, 
but  the  steward  says,  'At  least  thou  canst  not  deny  that 
he  is  thy  mainpast,  nor  that  he  was  attached  in  the  lord's 
garden  for  the  outrage  and  for  the  trespass.'  William 
then  admits  his  liability,  'Sir,  for  the  deed  of  my  son, 
and  the  trespass,  I  am  ready  to  do  thy  will,  and  I  ask 
thy  favour.'  " 

We  have  not  time  to  review  the  evidence.  I  will  cite 
only  one  more  authority  from  the  same  volume,  page  55 : 


Of  the  Study  of  the  Law  239 

"William,  the  Lorimer,  thou  art  attached  to  answer 
in  this  Court  for  that  J.  &  T.,  who  are  thy  servants,  were 
found  mowing  the  lord's  stubble  in  such  a  place  against 
the  general  prohibition  made  every  year  in  this  Court; 
and  the  stubble  they  carried  off  whither  thou  hadst 
commanded  them,  with  which  stubble  the  lord's  reeve 
might  have  covered  the  cowshed  and  dairy,  which  now 
are  uncovered,  whereby  the  lord  hath  damage  40  shillings 
in  the  matter  of  this  covering. 

"Sir,  (to  prove)  that  never  did  my  folk,  J.  &  T.  by 
name,  cut  the  stubble  of  that  place  by  my  commandment, 
nor  carry  it  off,  I  am  ready  to  acquit  myself  by  a  law  with 
so  many  folk  as  were  awarded  me  at  the  last  Court. 

"And  this  was  conceded  by  the  steward.  He  was 
acquitted  by  his  law,  and  therefore  went  quit." 

In  an  alternative  version,  defendant  denies  that  J. 
&  T.  were  his  mainpast,  alleging  that  they  were  laborers 
hir(d  but  from  day  to  day,  and,  of  this,  he  puts  himself 
on   the  jury. 

Some  interesting  precedents  may  also  be  found  in  2  Sel- 
den  Society  Select  Pleas  in  Manorial  Court,  pp.  149-158. 

It  is  but  fair  to  say  that  the  householder's  liability 
seems,  from  other  cases,  to  be  only  that  of  amercement, 
in  case  the  offender  is  not  produced. 

Upon  the  whole,  however,  the  more  probable  con- 
clusion seems  to  be,  as  stated  in  the  article  in  the  Harvard 
Law  Review  already  mentioned,  that,  although  a  con- 
stant effort  was  made  to  avoid  liability  on  the  ground 
that  no  command  or  consent  had  been  given,  yet,  so  far 
as  civil  actions  were  concerned,  "the  moral  sense  of  the 
community"  was  inclined  to  enforce  the  householder's 
liability. 

The  question  may  here  be  asked:  Why  should  the 
householder  be  thus  liable?  It  is  not  easy  for  us,  imbued 
with  modern  ideas,  to  find  a  sufficient  answer  to  the 


240  The  Historical  Method 

question,  but  we  must  look  for  it  in  the  social  necessities 
of  that  early  period.  Where  a  family  was  a  social  unit, 
and  every  member  of  it  a  mere  part,  and  often  an  insig- 
nificant part,  of  a  great  whole,  it  very  probably  followed 
that,  unless  the  injured  man  had  this  remedy,  he  had 
none  at  all. 

It  is  impossible,  even  in  this  cursory  examination  of  the 
subject,  to  leave  it  without  allusion  to  the  view  of  frank- 
pledge, and  the  liability  for  harboring  strangers.  By  the 
law  of  frankpledge,  it  was  the  duty  of  the  township  in 
which  any  man  lived  who  was  accused  of  crime,  to  pro- 
duce him  on  pain  of  amercement.  And,  so  far  as  stran- 
gers were  concerned,  I  will  illustrate  the  liabihty  by 
citing  a  case,  which  occurred  on  May  28,  1321,  and  is 
found  in  the  Coroner's  Rolls,  printed  and  translated  in 
the  ninth  volume  of  the  Selden  Society's  publications, 
page  74:  "A  certain  poor  beggar-woman  was  found 
dead  at  Buckby,  on  Thursday  next  after  the  feast  of  St. 
Augustine,  in  the  fourteenth  year  of  King  Edward;  her 
throat  had  been  cut,  and  so  she  had  died  forthwith.  .  .  . 
Inquest  was  taken  before  Simon,  of  Kelmarsh,  the  coro- 
ner, by  the  oath  of  twelve  men.  .  .  .  They  say,  on 
their  oaths,  that,  on  the  preceding  Wednesday,  before 
sunset,  Michael  Darling,  of  Buckby,  sheltered  two  beg- 
gars, a  man  and  a  woman,  whose  names  are  unknown,  in 
a  certain  house  in  his  yard,  and,  during  the  night,  the 
man  cut  the  woman's  throat,  and  she  died  forthwith; 
after  committing  the  act,  he  fled  to  some  place  unknown. 
Being  asked  if  any  other  person  aided  or  abetted  the  act, 
they  say,  no.  The  pledges  of  Michael  Darling,  for 
having  given  them  shelter,  Richard  Gamel  and  Walter, 
son  of  John.  The  knife  was  worth  a  penny,  for  which 
the  township  of  Buckby  will  account." 

Cases  of  this  kind  are  very  numerous  in  the  old 
records,  and  show  that,  in  these  days,    such    rules   as 


Of  the  Study  of  the  Law  241 

the  view  of  frankpledge  were  a  necessary  part  of  the 
domestic  police  system. 

Analogous  cases  of  liability,  such  as  have  been  men- 
tioned, may  have  had  some  influence  in  shaping  the  rule 
we  are  discussing,  but  our  time  is  not  sufficient  to 
make  more  than  this  passing  allusion. 

Returning  to  the  main  subject,  —  I  would  call  your 
attention  to  the  extraordinary  series  of  events  which 
marked  the  fourteenth  century,  and  may  have  had  a 
part  to  play  in  the  historical  development  of  the  rule. 

The  Black  Death,  as  it  was  called,  appeared  in  England 
about  the  middle  of  the  fourteenth  century.  It  is  sup- 
posed to  have  been  the  same  as  the  oriental  plague,  and 
undoubtedly  came  from  the  East.  The  mortality  was 
tremendous.  One-third,  some  authorities  say  one-half, 
of  the  population  perished.  Its  immediate  consequence 
was  a  dearth  of  labor  and  a  corresponding  increase  of 
wages.  Labor  rents  were  necessarily  commuted  by  the 
lords,  and  the  practical  effect  was  a  subversion  of  the 
whole  social  system.  The  well-known  Statutes  of 
Laborers,  passed  by  Parliament  after  Parliament,  with 
more  and  more  stringent  penalties,  proved  ineffectual 
to  keep  wages  at  their  old  rate.  As  has  been  said  by 
Thorold  Rogers,  "All  at  once,  and  as  by  a  stroke,  the 
labourer,  both  peasant  and  artizan,  became  the  master 
of  the  situation  in  England.  The  change  was  as  universal 
as  it  was  sudden."  Indeed,  Professor  Freeman  calls  the 
Black  Death  of  1349  the  greatest  of  all  social  landmarks 
in  English  history.  (Thorold  Rogers'  Economic  Interpre- 
tation of  History,  c.  i  and  ii;  Jusserand's  £wg/i5/i  Way- 
faring Life  in  the  Fourteenth  Century.  Stubbs'  Constitu- 
tional History,  ii,  416;  Freeman  in  Encycl.  Brit.,  Vol.  8, 
p.  325;  Cheyney's  Industrial  History  of  England,  c.  v.). 

Other  forces  were  at  work  beside  the  discontent  caused 
by  the  Statute  of  Laborers.     The  increase  of  taxation, 


242  The  Historical  Method 

on  account  of  the  war  in  France,  the  increasing  import- 
ance of  the  Guilds,  the  influence  of  Wiclif  and  the  preach- 
ing of  his  Lollard  disciples,  unsettled  every  stratum  of 
society.  John  Ball,  the  celebrated  travelling  priest, 
traversed  England,  taking  for  his  text,  "At  the  beginning 
we  were  all  created  equal,"  and  its  well  known  rhyming 
paraphrase: 

"When  Adam  dolve  and  Eve  span, 
Who  was  then  the  gentleman?" 

And  then,  in  1381,  broke  out  the  "peasants'  revolt," 
led  by  Wat  Tyler  (from  whom  it  is  said  President  Tyler 
claimed  descent.)  The  rebellion  was  soon  quelled. 
Tyler  and  Ball  were  slain,  but  their  purpose  was  accom- 
plished, for  the  ruling  classes  began  to  yield  to  the  spirit 
of  the  times.  The  reign  of  Status  drew  to  its  end,  and 
the  system  of  Contract  gradually  succeeded. 

Although  I  have  not  seen  it  anywhere  noticed  by 
others,  it  may  not  be  impossible  that  this  social  and 
political  revolution  produced  its  effect  upon  questions 
such  as  we  are  considering.  Certain  it  is  that  the  deci- 
sions rendered  in  the  fifteenth  century,  on  the  subject  of 
the  master's  liability,  rest  distinctly  upon  a  contractual 
basis.  Thus  we  find  the  cases  laying  down  as  a  test 
of  liability  the  command  or  implied  assent  of  the  master 
as  employer. 

Time  permits  the  citation  of  only  a  few  typical  authori- 
ties. The  well-known  case  of  Beaulieu  v.  Finglam, 
1401,  Y.  B.,  2  H.  IV,  18,  pi.  6,  may  be  found  translated 
by  Judge  Holmes,  and  also  by  Wallace  in  his  entertaining 
and  valuable  book  on  The  Reporters,  p.  84.  It  was  an 
action  for  damage  caused  by  the  defendant's  fire.  Mark- 
ham,  J.,  said,  "A  man  is  held  to  answer  for  the  act  of  his 
servant,  or  of  one  of  his  household,  in  such  a  case;  for, 
if  my  servant,  or  one  of  my  family,  puts  a  candle  in  a 


Of  the  Study  of  the  Law  243 

bracket,  and  the  candle  falls  into  the  straw  and  burns  up 
my  house  and  the  house  of  my  neighbor  also,  in  this  case 
I  shall  answer  to  my  neighbor  for  the  damage  which  he 
has,"  which  was  allowed  by  the  Court.  Hull,  the  defen- 
dant's counsel,  then  said,  "That  will  be  against  all  reason 
to  put  blame  or  default  on  a  man  where  there  is  none  in 
him,  for  negligence  of  his  servants  cannot  be  called  his 
feasance."  Then  Markham,  J.,  "I  shall  answer  to  my 
neighbor  for  him  who  enters  my  house  by  my  leave  or 
my  knowledge,  for  him  who  is  my  guest  or  my  servant's, 
if  he  does,  or  any  of  them  does,  anything,  as  with  a  candle 
or  other  thing,  by  which  the  house  of  my  neighbor  is 
burned,  but  if  a  man  from  outside  my  house,  against 
my  will,  does  so  .  .  .  for  that  I  shall  not  be  held 
to  answer  to  them  .  .  .  for  this  cannot  be  said 
to  be  through  ill  doing  on  my  part,  but  against  my 
will." 

In  1431,  Y.  B.,  9  H.  VI,  53,  pi.  37,  occurs  an  action  for 
selling  bad  wine.  Plea,  that  he  sold  it  through  his  servant, 
Martin,  Justice,  to  the  defendant,  "Of  your  own  knowl- 
edge you  have  deceived  him"  (the  plaintiff).  Rolf,  for 
the  defendant :  "If  I  have  a  servant  who  is  my  merchant, 
and  he  goes  to  a  fair  with  an  unsound  horse  to  sell  it, 
shall  the  party  have  action  of  deceit  against  me?  No." 
Martin,  Justice,  "You  are  right;  for  you  did  not  order 
him  to  sell  the  thing  to  the  other,  nor  to  any  particular 
person ;  but  if  your  servant,  by  your  covin  and  command- 
ment, sells  bad  wine,  the  buyer  shall  have  action  against 
you ;  for  it  is  your  own  selling,  and  if  the  case  is  that  you 
did  not  command  your  servant  to  sell  to  that  person,  then 
you  may  allege  that  you  did  not  sell  to  the  plaintifif." 

This,  I  think,  was  the  opinion  of  the  Court,  and  not  of 
counsel  for  the  defendant,  as  Mr.  Wigmore  asserts,  for 
Martin  was  judge  of  the  common  pleas  at  this  time,  and 
his  remarks  seem  to  have  been  accepted  as  a  statement 


244  The  Historical  Method 

of  the  law.  You  will  observe,  of  course,  the  prominence 
given  to  the  express  command  of  the  master. 

Numerous  other  cases  of  this  period  may  be  found 
collected  in  the  article  referred  to,  7  Harvard  Law  Re- 
view, 394-5. 

The  next  stage  in  the  history  of  the  doctrine  appears 
to  be  the  rule  that  the  master's  assent  is  to  be  implied 
from  the  general  authority  given  to  the  servant. 

The  first  distinctively  modem  case  in  which  the  rule  is 
stated  is  the  well-known  one  of  Michael  v.  Alestree,  2 
Lev.  172;  1  Ventris,  295;  3  Keble,  650  (1676),  an  action 
on  the  case  against  a  master  and  servant  for  bringing 
horses  to  be  broken  or  trained  in  Lincoln's  Inn  Fields, 
whereby  the  plaintiff  was  injured.  It  was  said  in  one  of 
the  reports  of  the  case  (3.  Keb.  650),  "The  master  is  as 
liable  as  the  servant,  if  he  gave  order  for  it,"  and  in  an- 
other (2  Lev.  172),  "It  shall  be  intended  that  the  master 
sent  the  servant  to  train  the  horses  there." 

It  would  seem,  upon  the  whole,  that  the  master  was 
considered  liable,  because  he  sent  his  servant  on  what 
he  must  have  known  was  a  dangerous  business,  viz.,  to 
break  a  horse  in  a  public  place,  and  he  must,  consequent- 
ly, be  understood  to  have  assumed  the  risk  of  the  business 
so  far  as  the  public  were  concerned.  You  may,  perhaps, 
see  the  analogy  to  the  case  of  McClung  v.  Dearborne, 
before  cited,  where  the  master  sent  his  servant  on  an 
errand  likely  to  provoke  a  breach  of  the  peace,  and  was 
held  liable  for  an  assault  committed  in  express  violation 
of  his  orders. 

Tuberville  v.  Stamp  is  another  oft-quoted  case,  decided 
in  1698.  It  was  an  action  for  a  fire  started  by  the  defend- 
ant's servant  in  a  field;  Skinner,  681.  It  was  argued  for 
the  defense  that,  "it  does  not  appear  in  this  case  to  be 
done  by  the  command  of  the  master,  and  then,  it  being 
out  of  his  house,  he  is  not  responsible." 


Of  the  Study  of  the  Law  245 

In  another  report  (Comb.  459),  Holt,  C.  J.,  said: 
"And  though  I  am  not  bound  by  the  act  of  a  stranger 
in  any  case,  yet  if  my  servant  doth  anything  prejudicial 
to  another,  it  shall  bind  me,  where  it  may  be  presumed 
that  he  acts  by  my  authority,  being  about  my  business," 
and  according  to  1  Ld.  Raym.  264,  Holt,  C.  J.,  further 
said :  "So,  in  this  case,  if  the  defendant's  servant  kindled 
the  fire  in  the  way  of  husbandry  and  proper  for  his  em- 
ployment, though  he  had  no  express  command  of  his 
master,  yet  the  master  shall  be  liable  ...  for  it 
shall  be  intended  that  the  servant  had  authority  from 
his  master,  it  being  for  his  master's  benefit." 

Cases  might  be  quoted  for  the  remainder  of  the  even- 
ing, but  I  intended  to  cite  only  a  few  of  the  principal 
authorities,  and  shall  merely  mention  Blackstone,  who 
says  {Commentaries  I,  429):  "In  the  same  manner, 
whatever  a  servant  is  permitted  to  do  in  the  usual  course 
of  his  business  is  equivalent  to  a  general  command.  .  .  . 
A  wife,  a  friend,  a  relation,  that  use  to  transact  business 
for  a  man,  are  quoad  hoc  his  servants,  and  the  principal 
must  answer  for  their  conduct,  for  the  law  implies 
that  they  act  under  a  general  command,  and  without 
such  a  doctrine  as  this  no  mutual  intercourse  between 
man  and  man  could  subsist  with  any  tolerable  con- 
venience."    .     .     . 

And  finally,  down  to  the  present  day,  the  theory  be- 
comes that  the  employer  is  liable  for  the  torts  of  his 
employe,  committed  within  the  scope  of  his  employment. 

We  will  now  but  briefly  consider  the  various  reasons 
assigned  for  the  rule.  Let  me  say,  first,  that  the  oft- 
quoted  maxim,  "Qui  facit  per  alium,  facit  per  se,"  is 
merely  a  way  of  stating  the  rule,  but  affords  no  explan- 
ation, and  the  other  maxim,  "Respondeat  superior,"  is 
even  more  bald.  But  some  explanations,  founded  on 
public  policy,  are  worthy  of  notice. 


246  The  Historical  Method 

1.  While,  of  course,  the  master  cannot  relieve  him- 
self from  liability  by  showing  that  he  has  exercised  every 
precaution  in  the  selection  of  his  servant,  yet  his  obvious 
interest  is  to  make  all  possible  effort  in  this  direction,  in 
order  to  prevent  such  accidents  as  far  as  possible.  This 
is  the  explanation  of  Bentham  and,  if  not  of  itself  sufficient, 
is,  nevertheless,  of  considerable  force. 

2.  We  must  not  overlook  the  wonderful  increase  in 
the  number  of  corporations,  which,  considered  as  artifi- 
cial persons,  must  necessarily  act  through  their  servants 
or  employes  in  much  of  their  business.  The  popular 
tendency  to  regard  the  corporation's  servant  as  the  visible, 
tangible  representative  of  the  corporation  is  too  strong  to 
be  resisted,  and  this  alone  might  account  for  the  preserva- 
tion and  extension  of  the  rule. 

3.  Bacon's  Abridgment  (Master  and  Servant,  K.) 
says,  "For,  as  in  strictness,  everybody  ought  to  transact 
his  own  affairs,  and  it  is  by  the  favor  and  indulgence  of 
the  law  that  he  can  delegate  the  power  of  acting  for  him 
to  another,  it  is  highly  reasonable  that  he  should  answer 
for  such  substitute,  at  least  civilitery 

A  very  learned  writer  (Pollock,  Essays  on  Jurispru- 
dence, p.  125)  has  elaborated,  on  independent  lines,  a  like 
explanation,  and  considers  this  form  of  liability  as  analo- 
gous to  a  group  of  other  cases.  Thus,  the  owner  of  land 
is  bound  to  keep  it  fenced,  and  is  responsible  for  the 
damage  caused  by  his  straying  cattle.  He  is  likewise 
responsible  for  the  damage  caused  by  the  breaking  of  his 
dam  or  reservoir,  in  which  he  has  stored  water,  or  the 
falling  of  a  building  which  overhangs  a  public  road.  The 
diligence  which  such  a  person  is  bound  to  observe  is 
measured  by  the  degree  of  hazard  in  his  undertaking. 
Now,  as  a  man's  business  is  his  property,  in  the  broad 
sense,  and  as  the  means  by  which  he  carries  it  on,  as 
vehicles  or  machinery,  are  his  property,  in  the  strict 


Of  the  Study  of  the  Law  247 

sense,  analogy  leads  to  the  rule  that  the  employer's  obli- 
gation is,  that  reasonable  care,  as  regards  the  public, 
shall  be  used  in  the  conduct  of  his  business,  and  this, 
whether  he  attends  to  it  himself,  or,  for  his  own  conven- 
ience, through  his  servants. 

4.  Finally,  there  is  an  ever-recurring  feeling  in  the 
popular  mind  that  the  master  ought  to  be  liable,  because, 
in  ninety-nine  cases  out  of  a  hundred,  the  servant  is  not 
financially  able  to  pay  the  damage  caused  by  his  negli- 
gence. This  sentiment  has  appeared  in  at  least  one  judi- 
cial decision  in  England  (and  there  may  be  others) .  Said 
Willes,  J.,  in  Limpus  v.  London  Omnibus  Co.,  1  H.  &  C. 
539,  "There  is  virtually  no  remedy  against  the  driver  of 
an  omnibus  and,  therefore,  it  is  necessary  that,  for  an 
injury  resulting  from  an  act  done  by  him  in  the  course  of 
his  master's  service,  the  master  should  be  responsible, 
for  there  ought  to  be  a  remedy  against  some  person  cap- 
able of  paying  damages  to  those  injured  by  improper 
driving."  So  it  was  said  in  our  own  case  of  McClimg  v. 
Dearborne,  134  Pa.  406,  before  cited:  "Servants  and 
employes  are  often  without  the  means  to  respond  in 
damages  for  the  injuries  they  may  inflict  on  others  by 
the  ignorant,  negligent  or  wanton  manner  in  which  they 
conduct  the  business  of  their  employer.  The  loss  must 
be  borne  in  such  cases  by  the  innocent  sufferer,  or  by  him 
whose  employment  of  an  ignorant,  careless  or  wanton 
servant  has  been  the  occasion  of  the  injury,  and,  under 
such  circumstances,  it  is  just  that  the  latter  should  bear 
the  loss."  That  is  to  say :  The  damage,  which  would  over- 
whelm the  person  injured  if  he  were  forced  to  bear  it 
himself,  is  shifted  on  to  the  shoulders  of  another,  better 
able,  in  the  majority  of  cases,  to  bear  the  loss.  It  resembles 
a  sort  of  accident  insurance,  in  which  the  public  are  policy 
holders,  and  the  employer  is  obliged  to  assume  the  role 
of  an  insurer. 


248  The  Historical  Method 

To  recapitulate,  we  find  that  the  rule  of  the  employer's 
liability  probably  had  its  origin  in  ancient  times,  when 
the  servant  or  slave  was  a  member  of  the  employer's 
household ;  that  it  at  first  depended  upon  status,  or  the 
legal  relationship  of  the  parties,  and  was  founded  upon 
primitive  conceptions  antedating  the  contractual  ideas 
of  modern  times.  That,  gradually,  as  the  social  system 
changed,  and  men  became  liable  for  their  own  acts,  and 
not  for  those  of  others  unless  they  had  previously  author- 
ized or  subsequently  ratified  them,  the  rule  was  maintain- 
ed on  a  contractual  theory,  really  because  it  was  agreeable 
to  public  policy,  although  the  reasons  assigned  for  it 
by  the  Courts  varied  from  time  to  time.  From  direct 
command  to  implied  authority,  and  from  this  to  the 
principle  of  scope  of  employment,  we  find  a  gradual 
development  of  this  important  rule  of  law  to  the  present 
time. 

I  will  not  pretend  to  assert  that  other  and  different 
conclusions  may  not  be  drawn  from  the  data  preserved. 
And,  indeed,  the  decisions  are  so  numerous,  so  obscure, 
so  shifting  in  the  reasons  assigned  for  them,  that  no  one 
can  confidently  claim  to  have  correctly  interpreted  them, 
or  to  have  discovered  all  which  bear  upon  the  subject. 
In  fact,  to  find  early  cases  really  bearing  upon  a  question 
such  as  this  is  like  looking  for  a  needle  in  a  haystack, 
and  you  know  the  only  way  to  find  a  needle  is  to  sit  down 
on  it  suddenly  when  you  are  looking  for  something  else. 
And  then,  remember  what  Captain  Cuttle  said,  "Which 
when  found,  make  a  note  of."  But  whether  the  con- 
clusions offered  you  this  evening  are  exactly  right  or  not 
is,  for  our  present  purpose,  unimportant.  It  is  enough 
if  you  will  assent  to  what  was  said  at  the  beginning, 
that  such  investigations  of  the  origins  of  our  law  will  lead 
to  a  study  of  history,  politics,  sociology  and  a  clearer 
understanding  of  legal  reasoning. 


Of  the  Study  of  the  Law  249 

I  had  intended,  when  I  began  my  preparation  for  this 
talk  to  you,  to  treat  in  hke  manner  of  several  other  rules 
and  trace  them  to  their  historical  origins,  but  even  this 
superficial  discussion  has  consumed  my  time  and  I  must 
close. 

This  reminds  me  of  an  incident  I  witnessed  once  in  the 
Court  of  the  Master  of  the  Rolls,  in  London,  when  I  was 
spending  a  few  weeks'  holiday  some  years  ago.  Lord 
Esher  was  sitting,  a  Judge  more  distinguished  for  legal 
ability  than  for  urbanity.  A  Q.  C,  after  addressing  the 
Court  for  some  time,  to  the  manifest  annoyance  of  the 
Judge,  who  was  fidgety  and  anxious  to  be  off,  finally 
said,  in  winding  up  his  argument,  "And  now,  my  lord 
I  think  I  have  said  upon  this  subject  all  I  have  to  say," 
when  Lord  Esher  interrupted  him  with  the  cruel  remark, 
"If  you  have  said  all  you  have  to  say,  you  had  better  sit 
down."  It  is  needless  to  say  that  counsel  very  soon 
acted  upon  this  broad  hint. 

So  having  said  all  I  have  to  say,  I  think  I  will  sit  down 
also,  but  not  before  I  plead  guilty  to  violating  a  promise 
which  I  made  when  I  was  requested  to  address  you.  I 
then  said  I  would  not  give  you  any  advice,  and  yet  I  fear 
I  have  been  advising  you  throughout,  and  cannot  leave 
without  expressing  the  hope  that  you  will  pursue  your 
legal  studies  in  the  historical  spirit,  and  by  the  historical 
method;  and  I  will  say  with  Lord  Chesterfield,  in  one  of 
his  letters  to  his  son,  "I  wish  to  God  that  you  had  as 
much  pleasure  in  following  my  advice  as  I  have  in  giving 
it  to  you,  and  you  may  the  easier  have  it,  as  I  give  you 
none  that  is  inconsistent  with  your  pleasure." 


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